Exhibit 2.1

EXECUTION COPY

Business Combination AGREEMENT

by and among

CC NEUBERGER PRINCIPAL HOLDINGS I,

SONAR MERGER SUB I, LLC,

SONAR MERGER SUB II, LLC,

SONAR MERGER SUB III, LLC,

SONAR MERGER SUB IV, LLC,

SONAR MERGER SUB V, LLC,

SONAR MERGER SUB VI, LLC,

INSIGHT (CAYMAN) IX EAGLE BLOCKER, LLC,

INSIGHT (DELAWARE) IX EAGLE BLOCKER, LLC,

INSIGHT GBCF (CAYMAN) EAGLE BLOCKER, LLC,

INSIGHT GBCF (DELAWARE) EAGLE BLOCKER, LLC,

ELLIOTT EAGLE JV LLC,

ELLIOTT ASSOCIATES, L.P.,

ELLIOTT INTERNATIONAL, L.P.,

PDI III E2OPEN BLOCKER CORP.

SONAR COMPANY MERGER SUB, LLC,

E2OPEN HOLDINGS, LLC,

AND

INSIGHT VENTURE PARTNERS, LLC, SOLELY IN ITS CAPACITY AS REPRESENTATIVE OF THE BLOCKER OWNERS AND THE COMPANY EQUITYHOLDERS

Dated as of October 14, 2020

TABLE OF CONTENTS

EXHIBITS

BUSINESS COMBINATION AGREEMENT

This Business Combination Agreement (this “Agreement”) is made and entered into as of October 14, 2020 (the “Effective Date”), by and among (i) CC Neuberger Principal Holdings I, a Cayman Islands exempted company, which shall domesticate as a Delaware corporation in accordance herewith (the “Buyer”), (ii) Sonar Merger Sub I, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 1”), (iii) Sonar Merger Sub II, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 2”), (iv) Sonar Merger Sub III, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 3”), (v) Sonar Merger Sub IV, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 4”), (vi) Sonar Merger Sub V, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 5”), (vii) Sonar Merger Sub VI, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Buyer (“Blocker Merger Sub 6”, and together with Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4 and Blocker Merger Sub 5, the “Blocker Merger Subs”), (viii) Insight (Cayman) IX Eagle Blocker, LLC, a Delaware limited liability company (“Insight Cayman Blocker”), (ix) Insight (Delaware) IX Eagle Blocker, LLC, a Delaware limited liability company (“Insight Delaware Blocker”), (x) Insight GBCF (Cayman) Eagle Blocker, LLC, a Delaware limited liability company (“Insight GBCF Cayman Blocker”), (xi) Insight GBCF (Delaware) Eagle Blocker, LLC, a Delaware limited liability company (“Insight GBCF Delaware Blocker”), (xii) Elliott Eagle JV LLC, a Delaware limited liability company (“Elliott Eagle Blocker”), (xiii) PDI III E2open Blocker Corp., a Delaware corporation (“PDI Blocker”, and together with Insight Cayman Blocker, Insight Delaware Blocker, Insight GBCF Cayman Blocker, Insight GBCF Delaware Blocker, and Elliott Eagle Blocker, the “Blockers”), (xiv) Sonar Company Merger Sub, LLC a Delaware limited liability company (“Company Merger Sub”, and together with the Buyer and the Blocker Merger Subs, the “Buyer Parties”), (xv) E2open Holdings, LLC, a Delaware limited liability company (the “Company”), and (xvi) Insight Venture Partners, LLC, a Delaware limited liability company, solely in its capacity as representative of the Blocker Owners and the Company Equityholders (the “Equityholder Representative”). Each of the Buyer, the Blocker Merger Subs, the Blockers, the Company Merger Sub, the Company, and the Equityholder Representative is also referred to herein as a “Party” and, collectively, as the “Parties.”

RECITALS

whereas, (a) the Buyer is a blank check company incorporated to acquire one or more operating businesses through a Business Combination, (b) the Buyer has formed each of Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4, Blocker Merger Sub 5 and Blocker Merger Sub 6 and (c) the Buyer has formed Company Merger Sub.

WHEREAS, prior to the Effective Date, the Buyer has entered into a forward purchase agreement (the “Forward Purchase Agreement”) with Neuberger Berman Opportunistic Capital Solutions Master Fund LP (“NBOKS”), as amended by that certain Side Letter, dated as of the date hereof, between NBOKS and the Buyer (the “NBOKS Side Letter”) for an aggregate investment of two hundred million dollars ($200,000,000) (the “Forward Purchase Amount”) by NBOKS in exchange for the Forward Purchase Securities, which investment shall close concurrently with the Closing in accordance with the terms and subject to the conditions of the Forward Purchase Agreement (as amended by the NBOKS Side Letter).

WHEREAS, in connection with the transactions contemplated hereby, the Buyer has entered into the Backstop Agreement with NBOKS, for an aggregate investment of up to three hundred million dollars ($300,000,000) by NBOKS in accordance with the terms and subject to the conditions of the Backstop Agreement.

WHEREAS, in connection with the transactions contemplated hereby, the Buyer has entered into those certain subscription agreements (each, a “Subscription Agreements”) listed on Schedule 1.1 with the applicable investors named therein (collectively, the “PIPE Investors”) pursuant to which the PIPE Investors have committed to make a private investment in the aggregate amount of five hundred twenty million dollars ($520,000,000) in public equity in the form of Buyer Class A Common Stock (the “PIPE Investment”) on the terms and subject to the conditions set forth therein.

WHEREAS, immediately prior to the Closing, on the Closing Date, (a) the Buyer will domesticate as a Delaware corporation in accordance with Section 388 of the DGCL and de-register as a Cayman Islands exempted company in accordance with Section 206 of the Cayman Islands Companies Law (2020 Revision) (the “Domestication”), (b) pursuant to the Domestication, (i) the Buyer Certificate of Incorporation will be adopted and (ii) the Buyer Bylaws will be adopted by the Buyer Board that is in existence immediately following the Domestication, and (c) pursuant to the Domestication, the Buyer will request a certificate of de-registration from the Registrar of Companies of the Cayman Islands.

WHEREAS, in order to effect the Business Combination contemplated hereby, (a) immediately following the Domestication, simultaneously (i) Blocker Merger Sub 1 will merge with and into Insight Cayman Blocker, with Insight Cayman Blocker as the surviving company and wholly-owned subsidiary of the Buyer (the “Insight Cayman Merger”), (ii) Blocker Merger Sub 2 will merge with and into Insight Delaware Blocker, with Insight Delaware Blocker as the surviving company and wholly-owned subsidiary of the Buyer (the “Insight Delaware Merger”), (iii) Blocker Merger Sub 3 will merge with and into Insight GBCF Cayman Blocker, with Insight GBCF Cayman Blocker as the surviving company and wholly-owned subsidiary of the Buyer (the “Insight GBCF Cayman Merger”), (iv) Blocker Merger Sub 4 will merge with and into Insight GBCF Delaware Blocker, with Insight GBCF Delaware Blocker as the surviving company and wholly-owned subsidiary of the Buyer (the “Insight GBCF Delaware Merger”), (v) Blocker Merger Sub 5 will merge with and into Elliott Eagle Blocker, with Elliott Eagle Blocker as the surviving company and wholly-owned subsidiary of the Buyer (together with the Elliott Note Transfer (as defined herein), the “Elliott Merger”), and (vi) Blocker Merger Sub 6 will merge with and into PDI Blocker, with PDI Blocker as the surviving company and wholly-owned subsidiary of the Buyer (the “PDI Merger”, together with the Insight Cayman Merger, the Insight Delaware Merger, the Insight GBCF Cayman Merger, the Insight GBCF Delaware Merger, and the Elliott Merger, the “Blocker Mergers”) and (b) thereafter, each of the Blockers will merge with and into the Buyer, with the Buyer as the surviving company (the “Buyer Mergers”).

WHEREAS, in order to effect the Business Combination contemplated hereby, immediately following the Buyer Mergers, Company Merger Sub will merge with and into the Company, with the Company as the surviving company (the “Company Merger”, together with the Blocker Mergers and the Buyer Mergers, the “Mergers”), resulting in the Company becoming a subsidiary of the Buyer.

WHEREAS, the boards of managers or directors, managing member or other governing body, as applicable, of each of the Buyer, Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4, Blocker Merger Sub 5, Blocker Merger Sub 6, Company Merger Sub, the Company, Insight Cayman Blocker, Insight Delaware Blocker, Insight GBCF Cayman Blocker, Insight GBCF Delaware Blocker, Elliott Eagle Blocker and PDI Blocker have approved and declared advisable entry into this Agreement, the Mergers, and the other transactions contemplated hereby, upon the terms and subject to the conditions hereof and in accordance with the Delaware General Corporation Law, as amended (the “DGCL”) and the Delaware Limited Liability Company Act, as amended (the “DLLCA”), as applicable.

WHEREAS, the boards of managers or directors, managing member or other governing body, as applicable, of each of the Buyer, Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4, Blocker Merger Sub 5, Blocker Merger Sub 6, Company Merger Sub, the Company, Insight Cayman Blocker, Insight Delaware Blocker, Insight GBCF Cayman Blocker, Insight GBCF Delaware Blocker, Elliott Eagle Blocker and PDI Blocker have determined that this Agreement, the Mergers and the other transactions contemplated hereby are fair to, advisable to and in the best interest of their respective equityholders and have recommended to their respective equityholders the approval of the Mergers.

WHEREAS, simultaneously with the Closing, the Company LLCA shall be amended and restated in the form attached hereto as Exhibit A (the “Company A&R LLCA”) to, among other things, reflect the Company Merger.

WHEREAS, simultaneously with the Closing, certain Company Unitholders and the Buyer will enter into a Tax Receivable Agreement in the form attached hereto as Exhibit B (the “Tax Receivable Agreement”).

WHEREAS, simultaneously with the Closing, the Insight Member, the Insight Blocker Owners, the Elliott Blocker Owners, the Sponsor, the Buyer and certain other parties thereto will enter into an Investor Rights Agreement in the form attached hereto as Exhibit C (the “Investor Rights Agreement”).

WHEREAS, simultaneously with the Closing, the Buyer and the Company Equityholders set forth on Schedule 1.2 will enter into a Lock-Up Agreement in a form consistent with the terms set forth on Schedule 1.3 (the “Lock-Up Agreement”).

WHEREAS, simultaneously with the entry into this Agreement, the Sponsor, the Buyer, CCNB Sponsor 1 Holdings LLC, NBOKS and the other individual parties thereto entered into that certain Sponsor Side Letter dated as of the date hereof, (the “Sponsor Side Letter”).

WHEREAS, as a condition to the consummation of the transactions contemplated hereby and by the Ancillary Agreements, the Buyer shall provide an opportunity to its shareholders to exercise their rights to participate in the Buyer Share Redemption, and on the terms and subject to the conditions and limitations, set forth herein and the applicable Buyer Governing Documents in conjunction with, inter alia, obtaining the Required Vote.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and subject to the terms and conditions set forth herein, the Parties, intending to be legally bound, hereby agree as follows:

Article I
CERTAIN DEFINITIONS

Section 1.1      Certain Definitions. For purposes of this Agreement, capitalized terms used but not otherwise defined herein shall have the meanings set forth below.

“Accounting Principles” means (a) the accounting principles, policies and procedures set out in Schedule 1.4, (b) to the extent not addressed in clause (a), the accounting principles, policies, procedures, practices, applications and methodologies used in preparing the audited balance sheet of E2open and its Subsidiaries as at February 29, 2020, and (c) to the extent not addressed in clauses (a) and (b), GAAP.

“Adjusted Aggregate Cash Amount” means (a) the Base Aggregate Cash Amount, minus (b) the Seller Advisor Fees.

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided, that no portfolio company of a private equity fund or other investment fund that is an Affiliate of a Group Company shall be deemed an “Affiliate” for purposes of this Agreement.

“Affiliated Group” means a group of Persons that elects to, is required to, or otherwise files a Tax Return or pays a Tax as an affiliated group, aggregate group, consolidated group, combined group, unitary group or other group recognized by applicable Tax Law.

“Aggregate Blocker Merger Consideration” means the Blocker Merger Consideration received by all Blocker Owners.

“Aggregate Company Optionholder Merger Consideration” means the Company Optionholder Merger Consideration received by all Company Optionholders who hold Vested Company Options, and the number of shares of Buyer Class A Common Stock underlying the Restricted Share Units and Company Optionholder Restricted Stock Consideration delivered in respect of the Unvested Company Options.

“Aggregate Company Class A Unitholder Merger Consideration” means the Company Class A Unitholder Merger Consideration received by all Company Class A Unitholders.

“Aggregate Company Class B Unitholder Merger Consideration” means the Company Class B Unitholder Merger Consideration received by all Company Class B Unitholders.

“Aggregate Company Unitholder Merger Consideration” means the Aggregate Company Class A Unitholder Merger Consideration, plus the Aggregate Company Class B Unitholder Merger Consideration.

“Aggregate Option Exercise Price” means the aggregate amount of exercise price that would be paid to the Company in respect of the exercise in full of all Company Options immediately prior to the Effective Time in accordance with the terms of the applicable option agreement with the Company pursuant to which such Company Options were issued.

“Aggregate Participation Levels Amount” means the sum of all Participation Levels assigned to each Class B Unit.

“Aggregate Permitted Acquisition Price Amount” means, without duplication, (i) (A) the aggregate amount of cash consideration paid by any Group Company prior to Closing in respect of all Permitted Acquisitions, minus (B) the amount paid by any Group Company in respect of cash of Permitted Acquisition Targets, plus (C) the amount of indebtedness of Permitted Acquisition Targets (as defined in the applicable purchase agreement governing such Permitted Acquisition, to the extent taken into account in the calculation of consideration, or that would constitute “Indebtedness” hereunder), plus (ii) the amount of transaction expenses paid on behalf of sellers or Permitted Acquisition Targets, plus (iii) the aggregate value (as set forth in the applicable definitive agreement governing such Permitted Acquisition or, if not so set forth, then as mutually agreed by the parties hereto) of all “rollover equity” issued, by the Company prior to the Closing Date in connection with the consummation of such Permitted Acquisitions.

“Allocation Schedule” means a schedule dated as of the Closing Date, prepared by the Company and in a format reasonably acceptable to the Buyer, setting forth, for each Company Equityholder and each Blocker Owner: (a) the name and payment instructions for such Company Equityholder or Blocker Owner, (b) (i) the number and type of Company Units held as of the Closing Date by such Company Equityholder and (ii) the number and type of Equity Interests held in each Blocker by each Blocker Owner, (c) the aggregate number of Company Units issuable in respect of the Company Options held by such Company Equityholder (assuming, in each case, all such Company Options were exercised in full by payment of cash), (d) the Pro Rata Percentage for such Company Equityholder or Blocker Owner and (e) (i) for each Blocker Owner, the Closing Blocker Merger Consideration for such Blocker Owner, (ii) for each Company Class A Unitholder, the Closing Company Class A Unitholder Merger Consideration for such Company Class A Unitholder, (iii) for each Company Class B Unitholder, the Closing Company Class B Unitholder Merger Consideration for such Company Class B Unitholder, and (iv) for each Company Optionholder, the Closing Company Optionholder Merger Consideration for each Vested Company Option and the number of Restricted Share Units and shares of Buyer Class B Common Stock to be delivered in respect of the Unvested Company Options, as applicable.

“Ancillary Agreement” means each agreement, document, instrument or certificate contemplated hereby to be executed in connection with the consummation of the transactions contemplated hereby, including the Company A&R LLCA, the Subscription Agreements, the Tax Receivable Agreement, the Lock-Up Agreements, the Sponsor Side Letter, the Investor Rights Agreement, the Forward Purchase Agreement, the NBOKS Side Letter, the Backstop Agreement, the Permitted Equity Subscription Agreements and the documents entered in connection therewith, in each case only as applicable to the relevant party or parties to such Ancillary Agreement, as indicated by the context in which such term is used.

“Anti-Corruption Laws” means all U.S. and non-U.S. Laws related to the prevention of corruption and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the Canada Corruption of Foreign Public Officials Act of 1999, the UK Bribery Act of 2010, the legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any other applicable Law that prohibits bribery, corruption, fraud or other improper payments.

“Applicable Withholding Amount” means such amounts as are required to be withheld or deducted under the Code or any applicable provision of Law with respect to payments made in respect of the Company Options.

“Available Closing Date Equity” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with the Buyer Share Redemptions), plus (b) the amount of PIPE Proceeds, plus (c) the Forward Purchase Amount, plus (d) (1) the Permitted Equity Financing Proceeds and (2) the Backstop Amount.

“Backstop Agreement” means that certain Backstop Facility Agreement by and between the Buyer and NBOKS, dated as of the date hereof.

“Backstop Amount” means the amount funded by NBOKS to the Buyer under the Backstop Agreement in connection with the Closing in accordance with the terms thereof and hereof, which, for the avoidance of doubt, may be zero.

“Base Aggregate Cash Amount” means (a) $700,000,000, minus (b) the Unfunded Redemption Amount, plus (c) (i) the Aggregate Option Exercise Price multiplied by (ii) the Cash Consideration Percentage, plus (d) (i) the Aggregate Participation Levels Amount multiplied by (ii) the Cash Consideration Percentage.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R § 1010.230.

“Blocker Accrued Income Taxes” means the sum of an amount determined with respect to each of the Blockers equal to the aggregate excess, if any, in each jurisdiction of the current income Tax liabilities over the aggregate current income Tax assets of such Blocker with respect to such jurisdiction attributable to any Pre-Closing Tax Period. The calculation of Blocker Accrued Income Taxes shall (a) exclude any deferred Tax liabilities or deferred Tax assets, (b) not take into account the effect of any transactions taken by such Blocker outside the ordinary course of business during the portion of the Closing Date after the time of Closing, and (c) be determined in accordance with Section 10.1(b).

“Blocker Disclosure Schedules” means the Disclosure Schedules delivered by the Blockers to the Buyer concurrently with the execution and delivery hereof.

“Blocker Equity Interests” means the issued and outstanding limited liability company interests or other Equity Interest in a Blocker immediately prior to the Blocker Effective Time.

“Blocker Fundamental Representations” means the representations and warranties set forth in ‎Section 5.1 (Organization; Authority; Enforceability), ‎Section 5.2(a) (Non-contravention), ‎Section 5.3 (Capitalization), ‎Section 5.4 (Holding Company; Ownership), ‎Section 5.7 (Brokerage) and Section 5.9 (Affiliate Transactions).

“Blocker Indebtedness” means, without duplication, with respect to any Blocker, all obligations (including all obligations in respect of principal, accrued and unpaid interest, penalties, breakage costs, fees and premiums and other costs and expenses associated with repayment or acceleration) of such Blocker (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar Contracts or instruments, (c) for the deferred purchase price of assets, property, goods or services, business (other than trade payables) or with respect to any conditional sale, title retention, consignment or similar arrangements, (d) any obligation capitalized or required to be capitalized in accordance with GAAP, (e) any letters of credit, bankers acceptances or other obligation by which such Blocker assured a creditor against loss, in each case to the extent drawn upon or currently payable, (f) for earn-out or contingent payments related to acquisitions or investments (assuming the maximum amount earned), including post-closing price true-ups, indemnifications and seller notes, (g) in respect of dividends declared or distributions payable but unpaid, (h) under derivative financial instruments, including hedges, currency and interest rate swaps and other similar Contracts, (i) all obligations with respect to any unpaid deferred compensation (including deferred compensation payable as deferred purchase price), plus the employer portion of any payroll Taxes incurred in respect of such obligations (determined as though all such obligations were payable as of the Closing Date), (j) all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Blocker has elected to defer pursuant to Section 2302 of the CARES Act, (k) all Taxes (including withholding Taxes) deferred pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States), (l) all Blocker Accrued Income Taxes, (m) all current and non-current Liabilities of the Blockers and any other Liabilities of the Blockers, including Taxes and shareholder debt, (n) any amounts unpaid under the terms of any Blocker Affiliated Transaction, or related to the termination of any Blocker Affiliated Transaction, and (o) in the nature of guarantees of the obligations described in clauses (a) through (n) above. For the avoidance of doubt, Blocker Indebtedness will exclude (A) any items included in the calculation of Transaction Expenses and (B) with respect to the Elliott Blocker, all amounts owed under the Elliott Blocker Notes.

“Blocker Merger Consideration” means, with respect to each Blocker Owner, (a) the Closing Blocker Merger Consideration, plus (b) any shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to Section 3.5(d)(i)(A), minus (c) any shares of Buyer Class A Common Stock forfeited by such Blocker Owner pursuant to Section 3.5(d)(ii)(A), plus (d) any shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to Section 3.5(d)(iii)(A), minus (e) any shares of Buyer Class A Common Stock forfeited by such Blocker Owner pursuant to Section 3.5(d)(iii)(B), plus (f) any cash in lieu of any fractional share as provided in Section 3.4(c).

“Blocker Owners” means, collectively, the Insight Blocker Owners, the Elliott Blocker Owners and the PDI Blocker Owners.

“Blocker Written Consents” means, collectively, the written consents executed by all of the members or stockholders, as applicable, of each of the Insight Cayman Blocker, the Insight Delaware Blocker, the Insight GBCF Cayman Blocker, the Insight GBCF Delaware Blocker, the Elliott Eagle Blocker and the PDI Blocker evidencing (a) the approval of this Agreement, such Blocker’s Blocker Merger and the other transactions contemplated hereby, (b) the appointment of the Equityholder Representative pursuant to ‎Section 14.1 hereof, and (c) an agreement to enter into any agreements or documentation reasonably required in connection with the obligations of the Blockers pursuant to Section 8.16.

“Business Combination” has the meaning ascribed to such term in the Buyer Memorandum and Articles.

“Business Data” means any and all data (whether or not in a Database), including Personal Information (whether of employees, contractors, consultants, customers, consumers, or other Persons), whether in electronic or any other form or medium, that is subject to Processing by any of the IT Assets.

“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

“Buyer Board” means, at any time, the board of directors of the Buyer.

“Buyer Bylaws” means the bylaws of the Buyer following the Domestication in the form attached hereto as Exhibit D.

“Buyer Capital Stock” means (a) as of the Effective Date, the Buyer Class A Ordinary Shares and the Buyer Class B Ordinary Shares and (b) following the Domestication, the Buyer Class A Common Stock, the Buyer Class B Common Stock and the Buyer Class V Voting Stock.

“Buyer Certificate of Incorporation” means the certificate of incorporation of the Buyer following the Domestication in the form attached hereto as Exhibit E.

“Buyer Class A Common Stock” means, following the Domestication, the Class A common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, to be authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Class A Ordinary Shares” means, prior to the Domestication, the Class A ordinary shares of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share.

“Buyer Class B-1 Common Stock” means, following the Domestication, the Series B-1 common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, to be authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Class B-2 Common Stock” means, following the Domestication, the Series B-2 common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, to be authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Class B Ordinary Shares” means, prior to the Domestication, the Class B ordinary shares of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share.

“Buyer Class V Voting Stock” means, following the Domestication, the Class V common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, to be authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Competing Transaction” means any transaction involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of all or substantially all of the assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving the Buyer (or any Affiliate or Subsidiary of the Buyer) and any party other than the Company or the Company Equityholders.

“Buyer Disclosure Schedules” means the Disclosure Schedules delivered by the Buyer to the Company concurrently with the execution and delivery of this Agreement.

“Buyer Expense Cap” means $63,000,000.

“Buyer Fundamental Representations” means the representations and warranties set forth in ‎Section 6.1 (Organization; Authority; Enforceability), Section 6.2(a) (Non-Contravention), ‎Section 6.3 (Capitalization), ‎Section 6.6 (Brokerage) and Section 6.7 (Trust Account).

“Buyer Governing Documents” means, at any time prior to the Domestication, the Buyer Memorandum and Articles and, at any time following the Domestication, the Buyer Certificate of Incorporation and the Buyer Bylaws, as in effect at such time.

“Buyer Memorandum and Articles” means the amended and restated memorandum and articles of association of the Buyer adopted by special resolution dated April 23, 2020, as in effect on the Effective Date.

“Buyer SEC Filings” means the forms, reports, schedules, registration statements and other documents filed by the Buyer with the SEC, including the Form S-4, Additional Buyer Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications and supplements thereto.

“Buyer Share Redemption” means the election of an eligible holder of the Buyer Class A Ordinary Shares (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement) to redeem all or a portion of such holder’s Buyer Class A Ordinary Shares, at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement) in connection with the Buyer Shareholder Meeting.

“Buyer Shareholder Meeting” means a general meeting of the Buyer Shareholders to vote on the Buyer Shareholder Voting Matters.

“Buyer Shareholder Voting Matters” means the Required Buyer Shareholder Voting Matters and the Other Buyer Shareholder Voting Matters.

“Buyer Shareholders” means the holders of the Buyer Class A Ordinary Shares and Buyer Class B Ordinary Shares.

“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act of 2020.

“Cash and Cash Equivalents” means the sum (expressed in United States dollars) of all cash and cash equivalents which are convertible within ninety (90) days (including marketable securities, bank deposits, checks received but not cleared, and deposits in transit of the Blockers and the Group Companies) of the Blockers and the Group Companies as of the Measurement Time, in each case, calculated in accordance with the Accounting Principles; provided, that Cash and Cash Equivalents shall exclude (i) any customer deposits for the incentive payment program administered by the Group Companies on behalf of customers of the Group Companies that are held in a restricted cash account and (ii)  security deposits, and shall be calculated net of any outstanding checks written or ACH transactions or wire transfers that have been issued but remain outstanding or uncleared as of the Measurement Time; and provided, further, that Cash and Cash Equivalents shall exclude any Cash and Cash Equivalents used to pay Transaction Expenses between the Measurement Time and Closing.

“Cash Consideration Percentage” means a fraction, expressed as a percentage, equal to (a) the Adjusted Aggregate Cash Amount, divided by (b) (i) the Merger Consideration, minus (ii) the Seller Advisor Fees, minus (iii) the Aggregate Option Exercise Price, minus (iv) the Aggregate Participation Levels Amount.

“Class A Units” has the meaning set forth in the Company LLCA.

“Class A-1 Units” has the meaning set forth in the Company LLCA.

“Class B Cash-Out Units” means, with respect to each Company Class B Unitholder, a number of Class B Units held by such Company Class B Unitholder equal to the Total Class B Units less the Class B Rollover Units, in each case, determined separately with respect to each grant of Class B Units outstanding as of immediately prior to the Effective Time.

“Class B Rollover Units” means, with respect to each Company Class B Unitholder, a number of Class B Units held by such Company Class B Unitholder equal to the product of (x) such Company Class B Unitholder’s Total Class B Units, multiplied by (y) the Equity Consideration Percentage, in each case, determined separately with respect to each grant of Class B Units outstanding as of immediately prior to the Effective Time.

“Class B Units” has the meaning set forth in the Company LLCA.

“Clayton Act” means the Clayton Act of 1914.

“Closing Blocker Merger Consideration” means, (x) with respect to each Blocker Owner other than the Insight Blocker Owners, (a) a number of shares of Buyer Class A Common Stock equal to (i) (A) (1) (I) the Estimated Merger Consideration, minus (II) the Base Aggregate Cash Amount multiplied by (2) such Blocker Owner’s Pro Rata Percentage divided by (B) the Reference Price, minus (ii) the Estimated Closing Blocker Indebtedness of such Blocker Owner’s Blocker divided by the Reference Price, (b) a number of shares of Buyer Class B-2 Common Stock equal to (i) 6,000,000 multiplied by (ii) such Blocker Owner’s Pro Rata Percentage, (c) a number of shares of Buyer Class B-1 Common Stock equal to (i) 10,000,000 multiplied by (ii) such Blocker Owner’s Pro Rata Percentage, and (d) an amount in cash equal to (i) the Adjusted Aggregate Cash Amount multiplied by (ii) such Blocker Owner’s Pro Rata Percentage, and (y) with respect to each Insight Blocker Owner, (a) a number of shares of Buyer Class A Common Stock equal to (i) (A) (1) (I) the Estimated Merger Consideration, minus (II) the Base Aggregate Cash Amount multiplied by (2) such Insight Blocker Owner’s Pro Rata Percentage divided by (B) the Reference Price, minus (ii) the Estimated Closing Blocker Indebtedness of such Insight Blocker Owner’s Blocker divided by the Reference Price, (b) a number of shares of Buyer Class A Common Stock equal to (i) (A) the Insight Deemed Contribution Amount multiplied by (B) such Insight Blocker’s Insight Owner Relative Pro Rata Percentage divided by (ii) the Reference Price, (c) a number of shares of Buyer Class B-2 Common Stock equal to (i) 6,000,000 multiplied by (ii) such Insight Blocker Owner’s Pro Rata Percentage, (d) a number of shares of Buyer Class B-1 Common Stock equal to (i) 10,000,000 multiplied by (ii) such Insight Blocker Owner’s Pro Rata Percentage, and (e) an amount in cash equal to (i) (A) the Adjusted Aggregate Cash Amount multiplied by (B) such Blocker Owner’s Pro Rata Percentage, minus (ii) (A) the Insight Deemed Contribution Amount multiplied by (B) such Insight Blocker Owner’s Insight Owner Relative Pro Rata Percentage.

“Closing Company Class A Unitholder Merger Consideration” means, (x) with respect to each Company Class A Unitholder other than the Insight Member, (a) a number of Common Units equal to (i) (A) the Estimated Merger Consideration, minus the Base Aggregate Cash Amount multiplied by (B) such Company Class A Unitholder’s Pro Rata Percentage divided by (ii) the Reference Price (the amount calculated in clause (a), each such Company Class A Unitholder’s “Class A Common Unit Consideration”), (b) a number of shares of Buyer Class V Voting Stock equal to the number of Common Units determined for such Company Class A Unitholder pursuant to clause (a) of this definition, (c) a number of Series 2 RCUs equal to (i) 6,000,000 multiplied by (ii) such Company Class A Unitholder’s Pro Rata Percentage (the amount calculated in clause (c), each such Company Class A Unitholder’s “Class A Series 2 RCU Consideration”), (d) a number of Series 1 RCUs equal to (i) 10,000,000 multiplied by (ii) such Company Class A Unitholder’s Pro Rata Percentage (the amount calculated in clause (d), each such Company Class A Unitholder’s “Class A Series 1 RCU Consideration”) and (e) an amount in cash equal to (i) the Adjusted Aggregate Cash Amount multiplied by (ii) such Company Class A Unitholder’s Pro Rata Percentage, and (y) with respect to the Insight Member, (a) a number of Common Units equal to (i) (A) (1) the Estimated Merger Consideration, minus (2) the Base Aggregate Cash Amount multiplied by (B) the Insight Member’s Pro Rata Percentage divided by (ii) the Reference Price (the amount calculated in clause (a), the Insight Member’s “Class A Common Unit Consideration”), (b) a number of Common Units equal to (i) (A) the Insight Deemed Contribution Amount multiplied by (B) the Insight Member’s Insight Owner Relative Pro Rata Percentage divided by (ii) the Reference Price, (c) a number of shares of Buyer Class V Voting Stock equal to the number of Common Units determined for such Insight Member pursuant to clause (a) and clause (b) of this definition, (d) a number of Series 2 RCUs equal to (i) 6,000,000 multiplied by (ii) the Insight Member’s Pro Rata Percentage (the amount calculated in clause (d), the Insight Member’s “Class A Series 2 RCU Consideration”), (e) a number of Series 1 RCUs equal to (i) 10,000,000 multiplied by (ii) the Insight Member’s Pro Rata Percentage (the amount calculated in clause (e), the Insight Member’s “Class A Series 1 RCU Consideration”) and (f) an amount in cash equal to (i) (A) the Adjusted Aggregate Cash Amount, multiplied by (B) the Insight Member’s Pro Rata Percentage, minus (ii) (A) the Insight Deemed Contribution Amount multiplied by (B) the Insight Member’s Insight Owner Relative Pro Rata Percentage.

“Closing Company Class B Unitholder Merger Consideration” means, with respect to each Company Class B Unitholder, (a) a number of Common Units equal to (i) (A) (1) the Estimated Merger Consideration, minus (2) the Base Aggregate Cash Amount, multiplied by (B) such Company Class B Unitholder’s Pro Rata Percentage, minus (3) the aggregate Participation Levels in respect of all of such Company Class B Unitholder’s Class B Rollover Units divided by (ii) the Reference Price (the amount calculated in clause (a), each such Company Unitholder’s “Class B Common Unit Consideration”), (b) a number of shares of Buyer Class V Voting Stock equal to the number of Common Units determined for such Company Unitholder pursuant to clause (a) of this definition, (c) a number of Series 2 RCUs equal to (i) 6,000,000 multiplied by (ii) such Company Class B Unitholder’s Pro Rata Percentage (the amount calculated in clause (c), each such Company Class B Unitholder’s “Class B Series 2 RCU Consideration”), (d) a number of Series 1 RSUs equal to (i) 10,000,000 multiplied by (ii) such Company Class B Unitholder’s Pro Rata Percentage (the amount calculated in clause (d), each such Company Class B Unitholder’s “Class B Series 1 RCU Consideration”) and (e) such Company Class B Unitholder’s Company Class B Unitholder Cash Consideration.

“Closing Blocker Indebtedness” means the Blocker Indebtedness of each Blocker as of the Measurement Time, calculated in accordance with the Accounting Principles applicable to the Blockers.

“Closing Company Indebtedness” means the Company Indebtedness as of the Measurement Time, calculated in accordance with the Accounting Principles.

“Closing Company Optionholder Merger Consideration” means, with respect to each Company Optionholder who holds Vested Company Options, (a) a number of shares of Buyer Class A Common Stock equal to (i) (A) (1) the Estimated Merger Consideration, minus (2) the Base Aggregate Cash Amount, multiplied by (B) such Company Optionholder’s Pro Rata Percentage, minus (C) the aggregate exercise price in respect of all of such Company Optionholder’s Company Rollover Options divided by (ii) the Reference Price (the amount calculated in clause (a), each such Company Optionholder’s “Class A Common Stock Consideration”), (b) such Company Optionholder’s Company Optionholder Restricted Stock Consideration and (c) such Company Optionholder’s Company Optionholder Cash Consideration.

“Code” means the Internal Revenue Code of 1986, as amended.

“Common Unit Consideration” means the Class A Common Unit Consideration, plus the Class B Common Unit Consideration.

“Common Units” has the meaning set forth in the Company A&R LLCA.

“Company Accrued Income Taxes” means the sum of an amount determined with respect to each of the Group Companies equal to the aggregate excess, if any, in each jurisdiction of the current income Tax liabilities over the aggregate current income Tax assets of the Group Companies with respect to such jurisdiction attributable to any Pre-Closing Tax Period. The calculation of Accrued Income Taxes shall (a) exclude any deferred Tax liabilities or deferred Tax assets, (b) not take into account the effect of any transactions taken by the Group Companies outside the ordinary course of business during the portion of the Closing Date after the time of Closing, and (c) be determined in accordance with Section 10.1(b).

“Company Cash-Out Option” means, with respect to each Company Optionholder, a number of Company Options held by such Person equal to the Total Company Options less the Company Rollover Options, in each case, determined separately with respect to each grant of Company Options outstanding as of immediately prior to the Effective Time.

“Company Class A Unitholder” means each holder (other than the Blockers prior to the Buyer Merger and the Buyer after the Buyer Merger) of Class A Units or Class A-1 Units.

“Company Class A Unitholder Merger Consideration” means, with respect to each Company Class A Unitholder, (a) the Closing Company Class A Company Unitholder Merger Consideration, plus (b) any Common Units (together with cash in lieu of any fractional Common Unit as provided in Section 3.4(c)) issued to such Company Class A Unitholder pursuant to Section 3.5(d)(i)(B) and any shares of Buyer Class V Voting Stock issued to such Company Class A Unitholder pursuant to Section 3.5(d)(i)(D), minus (c) any Common Units forfeited by such Company Class A Unitholder pursuant to Section 3.5(d)(ii)(B) and any shares of Buyer Class V Voting Stock forfeited by such Company Class A Unitholder pursuant to Section 3.5(d)(ii)(D).

“Company Class B Unitholder” means each holder (other than the Blockers prior to the Buyer Merger and the Buyer after the Buyer Merger) of Class B Units.

“Company Class B Unitholder Cash Consideration” means, with respect to each Company Class B Unitholder, an amount in cash equal to (i) the Adjusted Aggregate Cash Amount multiplied by such Company Class B Unitholder’s Pro Rata Percentage, minus (ii) the aggregate Participation Levels in respect of all of such Company Class B Unitholder’s Class B Cash-Out Units.

“Company Class B Unitholder Merger Consideration” means, with respect to each Company Class B Unitholder, (a) the Closing Company Class B Company Unitholder Merger Consideration, plus (b) any Common Units (together with cash in lieu of any fractional Common Unit as provided in Section 3.4(c)) issued to such Company Class B Unitholder pursuant to Section 3.5(d)(i)(C) and any shares of Buyer Class V Voting Stock issued to such Company Class B Unitholder pursuant to Section 3.5(d)(i)(D), minus (c) any Common Units forfeited by such Company Class B Unitholder pursuant to Section 3.5(d)(ii)(C) and any shares of Buyer Class V Voting Stock forfeited by such Company Class B Unitholder pursuant to Section 3.5(d)(ii)(D).

“Company Disclosure Schedules” means the Disclosure Schedules delivered by the Company to the Buyer concurrently with the execution and delivery of this Agreement.

“Company Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA), each Pension Agreement and each equity or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or independent contractor, transaction, change in control, retention, deferred compensation, vacation, sick pay or paid time-off, medical, dental, life or disability, retiree or post-termination health or welfare, salary continuation, fringe or other compensation or benefit plan, program, policy, agreement, arrangement or Contract, in each case, that is maintained, sponsored or contributed to (or required to be contributed to) by any of the Group Companies or under or with respect to which any of the Group Companies has any Liability, but in each case, other than a multiemployer plan as defined in Section 3(37) of ERISA or any statutory plan maintained or administered by a Governmental Entity outside of the United States.

“Company Equityholders” means all holders (other than the Blockers) of Company Units or Company Options.

“Company Fundamental Representations” means the representations and warranties set forth in ‎Section 4.1 (Organization; Authority; Enforceability), Section 4.2(a) (Non-contravention), ‎Section 4.3 (Capitalization), Section 4.13 (Brokerage) and ‎Section 4.20 (Affiliate Transactions).

“Company Indebtedness” means, without duplication, with respect to the Group Companies on a consolidated basis, all obligations (including all obligations in respect of principal, accrued and unpaid interest, penalties, breakage costs, fees and premiums and other costs and expenses associated with repayment or acceleration) of the Group Companies (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar Contracts or instruments, (c) for the deferred purchase price of assets, property, goods or services, business (other than trade payables incurred in the Ordinary Course of Business to the extent included in Net Working Capital) or with respect to any conditional sale, title retention, consignment or similar arrangements, (d) any obligation for a lease classified as a capital or finance Lease in the Financial Statements or any obligation capitalized or required to be capitalized in accordance with GAAP, (e) any letters of credit, bankers acceptances or other obligation by which any Group Company assured a creditor against loss, in each case to the extent drawn upon or currently payable, (f) for earn-out or contingent payments related to acquisitions or investments (assuming the maximum amount earned), including post-closing price true-ups, indemnifications and seller notes, (g) in respect of dividends declared or distributions payable but unpaid, (h) under derivative financial instruments, including hedges, currency and interest rate swaps and other similar Contracts, (i) all obligations with respect to any unpaid deferred compensation (including deferred compensation payable as deferred purchase price), plus the employer portion of any payroll Taxes incurred in respect of such obligations (determined as though all such obligations were payable as of the Closing Date), (j) all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, (k) all Taxes (including withholding Taxes) deferred pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States), (l) all Company Accrued Income Taxes, (m) in the nature of guarantees of the obligations described in clauses (a) through (l) above, and (n) for the avoidance of doubt, any obligations described in the foregoing clauses (a) through (m) above acquired in connection with the acquisition of a Person in a Permitted Acquisition. For the avoidance of doubt, Company Indebtedness will (x) be measured on a consolidated basis and exclude any intercompany Company Indebtedness among the Group Companies which are wholly-owned, (y) excluded deferred revenue and (z) exclude any items included as a current liability in the calculation of Net Working Capital and included in the calculation of Transaction Expenses.

“Company LLCA” means the Second Amended and Restated Operating Agreement of the Company, dated as of April 6, 2017.

“Company Option” means any option to purchase one or more Class A Units or Class A-1 Units issued pursuant to the Option Plan and the applicable Company Option agreement.

“Company Optionholder Cash Consideration” means, with respect to each Company Optionholder an amount equal to (i) (A) the Adjusted Aggregate Cash Amount multiplied by (B) such Company Optionholder’s Pro Rata Percentage, minus (ii) the aggregate exercise price that would be paid to the Company in respect of all of such Company Optionholder’s Company Cash-Out Options had all such Company Cash-Out Options been exercised in full immediately prior to the Effective Time and assuming concurrent payment in full of the entire exercise price of such Company Optionholder’s Company Cash-Out Options solely in cash.

“Company Optionholder Merger Consideration” means, with respect to each Company Option, (a) the Closing Company Optionholder Merger Consideration, plus (b) any Buyer Class A Common Stock (together with cash in lieu of any fractional share of Buyer Class A Common Stock as provided in Section 3.4(c)) issued to such Company Optionholder pursuant to Section 3.5(d)(i)(E) minus (c) any shares of Buyer Class A Common Stock forfeited by such Company Optionholder pursuant to Section 3.5(d)(ii)(E).

“Company Optionholder Restricted Stock Consideration” means, with respect to each Company Optionholder, (a) a number of shares of Buyer Class B-2 Common Stock equal to (i) 6,000,000 multiplied by (ii) such Company Optionholder’s Pro Rata Percentage, and (b) a number of shares of Buyer Class B-1 Common Stock equal to (i) 10,000,000 multiplied by (ii) such Company Optionholder’s Pro Rata Percentage.

“Company Optionholders” mean all of the holders of Company Options.

“Company Rollover Options” means, with respect to each Company Optionholder, a number of Company Options held by such Company Optionholder equal to the product of (x) such Company Optionholder’s Total Company Options, multiplied by (y) the Equity Consideration Percentage, in each case, determined separately with respect to each grant of Company Options outstanding as of immediately prior to the Effective Time.

“Company Subsidiaries” means the direct and indirect Subsidiaries of the Company.

“Company Unitholder” means each Company Class A Unitholder and Company Class B Unitholder.

“Company Units” means the Class A Units, the Class A-1 Units and the Class B Units.

“Company Written Consent” means a written consent of the Insight Member, the Insight Blockers, the Elliott Blocker, the PDI Blocker and Performance Direct Investments III, L.P. evidencing (a) the approval of this Agreement, the Company Merger and the transactions contemplated hereby, (b) the appointment of the Equityholder Representative pursuant to ‎Section 14.1 hereof and (c) an agreement to enter into, as applicable, (i) the Investor Rights Agreement, (ii) the Company A&R LLCA and (iii) the Tax Receivable Agreement and (iv) any agreements or documentation reasonably required in connection with the obligations of the Company pursuant to Section 8.16 or required to be delivered at Closing hereunder.

“Competing Transaction” means (a) any transaction involving, directly or indirectly, any Blocker or any Group Company, which upon consummation thereof, would result in any Blocker or any Group Company becoming a public company, (b) any direct or indirect sale (including by way of a merger, consolidation, exclusive license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of any material portion of the assets (including Intellectual Property) or business of any Blocker or the Group Companies, taken as a whole (but excluding non-exclusive licenses of Intellectual Property or other transactions in the Ordinary Course of Business), (c) any direct or indirect sale (including by way of an issuance, dividend, distribution, merger, consolidation, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of equity, voting interests or debt securities convertible into equity of any Blocker or any Group Company (excluding any such sale between or among the Group Companies or any issuance pursuant to the Option Plan or pursuant to the exercise of any Company Option), or rights, or securities that grant rights, to receive the same including profits interests, phantom equity, options, warrants, convertible or preferred stock or other equity-linked securities (except to the extent contemplated hereby or in connection with a Permitted Acquisition and as permitted by the terms of this Agreement), (d) any direct or indirect acquisition (whether by merger, acquisition, share exchange, reorganization, recapitalization, joint venture, consolidation or similar business combination transaction), but excluding procurement of assets in the Ordinary Course Of Business (but not the acquisition of a Person or business via an asset transfer), by either a Blocker or any Group Company of the equity or voting interests of, or a material portion of the assets or business of, a third party (except, in each case, for any Permitted Acquisition), or (e) any liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of any Blocker or any Group Company (except to the extent expressly permitted by the terms hereof), in all cases of clauses (a) through (e), either in one or a series of related transactions, where such transaction(s) is to be entered into with a Competing Buyer (including any Company Equityholder, Blocker Owner, Blocker, other direct or indirect equityholder of any Group Company or any of their respective directors, officers or Affiliates (other than any Group Company) or any representatives of the foregoing).

“Confidential Information” means all information, data, documents, agreements, files and other materials, whether disclosed orally or disclosed or stored in written, electronic or other form or media, which is obtained from or disclosed by the Buyer, the Company Equityholders, Blocker or any Group Company (each, a “Disclosing Party”) to any other Party (each, a “Recipient”), which in any way related or pertains to the Disclosing Party or its Affiliates; provided, however, that “Confidential Information” shall not include information that is (at the time of disclosure) or becomes (a) available to the public through no fault of the Recipient or its Affiliates (other than the Disclosing Party) or representatives, (b) was properly known to the Recipient or its Affiliates (other than the Disclosing Party) or representatives, without restriction, prior to disclosure by the Disclosing Party, as shown by documentary or other reasonable evidence, (c) was properly disclosed to the Recipient or its Affiliates (other than the Disclosing Party) or representatives by another Person without restriction or (d) was independently developed by the Recipient or its Affiliates (other than the Disclosing Party) or representatives without use of or reference to the Confidential Information, as shown by documentary or other reasonable evidence.

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of June 29, 2020 among the Buyer, the Sponsor and the Company.

“Contract” means any written or oral contract, agreement, license or Lease (including any amendments thereto).

“COVID-19” means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains and sequences) or any mutations thereof and/or related or associated epidemics, pandemics, or disease outbreaks.

“Credit Agreement” means that certain Credit Agreement, dated as of November 26, 2018 (as amended by that certain Amendment No. 1 to Credit Agreement and Incremental Joinder, dated as of July 2, 2019, by that certain Amendment No. 2 to Credit Agreement, dated as of November 5, 2019, and as may be further amended, restated, amended and restated, supplemented or modified from time to time), by and among E2open Intermediate, LLC as holdings, E2open, as borrower, the lenders party thereto, and Golub Capital Markets LLC, as administrative agent.

“Databases” means any and all databases, data collections and data repositories of any type and in any form (and all corresponding data and organizational or classification structures or information), together with all rights therein.

“Disclosure Schedules” means the Buyer Disclosure Schedules, the Blocker Disclosure Schedules and the Company Disclosure Schedules.

“E2open” means E2open, LLC, a Delaware limited liability company.

“Elliott Blocker Notes” means those certain Loan Agreements, dated as of March 26, 2015, by and between (i) Elliott International, L.P., a Delaware limited partnership (“EILP”), as lender, and Elliott Eagle Blocker, as borrower, and (ii) Elliott Associates, L.P., a limited partnership formed under the laws of the Cayman Islands (“EALP”), as lender, and Elliott Eagle Blocker, as borrower.

“Elliott Blocker Owners” means EILP and EALP, and the Elliott Reorganization Transferees, as applicable.

“Elliott Blocker Owners Relative Pro Rata Percentage” means, with respect to each Elliott Blocker Owner, the aggregate number of Company Units held by such Elliott Blocker Owner immediately prior to the Closing, divided by the aggregate number of Company Units held by all Elliott Blocker Owners immediately prior to the Closing.

“Enterprise Value” means $2,437,000,000.00, plus the Aggregate Permitted Acquisition Price Amount.

“Environmental Laws” means all Laws concerning pollution, human health or safety, Hazardous Materials or protection of the environment.

“Equity Consideration Percentage” means an amount, expressed as a percentage, equal to (a) one hundred percent (100%), minus (b) the Cash Consideration Percentage.

“Equity Financing Sources” means the Persons that have committed to provide or otherwise entered into agreements to subscribe for or acquire Equity Interests in the Buyer in exchange for cash prior to or in connection with the transactions contemplated hereby (the “Equity Financing”), including the parties named in any Subscription Agreement, a Permitted Equity Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement, together with their current or future limited partners, shareholders, managers, members, controlling Persons, respective Affiliates and their respective Affiliates and representatives involved in such subscription or acquisition and, in each case, their respective successors and assigns.

“Equity Interests” means, with respect to any Person, all of the shares or quotas of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, trust rights, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership, member or trust interests therein).

“Equityholder Representative Expense Account” means the account maintained by the Equityholder Representative into which the payment required by the Blocker Owners and the Company Equityholders in accordance with ‎Section 14.1 shall be made and any successor account in which the Equityholder Representative Expense Amount shall be held by the Equityholder Representative.

“Equityholder Representative Expense Amount” means an amount to be designated by the Equityholder Representative prior to the Closing, and any earnings on such amount, as such amount may be reduced from time to time by payments made therefrom in accordance with the terms hereof.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any Person that, together with any Group Company, is (or at a relevant time has been or would be) considered a single employer under Section 414 of the Code.

“Ex-Im Laws” means export, controls, import, deemed export, reexport, transfer, and retransfer controls, including, contained in the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the customs and import Laws administered by the U.S. Customs and Border Protection, and the EU Dual Use Regulation.

“Executives” means Debbie Smith, Peter Hantman, Michael Farlekas, Jarett Janik, Laura Fese and Pawan Joshi.

“Existing Lenders” means the lenders under the Credit Agreement.

“Federal Trade Commission Act” means the Federal Trade Commission Act of 1914.

“Flow-Thru Entity” means (a) any entity, plan or arrangement that is treated for income Tax purposes as a partnership, (b) a “controlled foreign corporation” within the meaning of Code Section 957, (c) a “specified foreign corporation” within the meaning of Code Section 965 or (d) a “passive foreign investment company” within the meaning of Code Section 1297.

“Form S-4” means the Registration Statement on Form S-4 containing a proxy statement/prospectus to be filed with the SEC by the Buyer in connection with the Buyer Shareholder Meeting, including any amendments thereto.

“Forward Purchase Securities” means an aggregate of twenty million (20,000,000) Buyer Class A Ordinary Shares, plus an aggregate of five million (5,000,000) Buyer Warrants to purchase one (1) Buyer Class A Ordinary Share at eleven dollars and fifty cents ($11.50) per share.

“Fraud” means actual and intentional common law fraud committed by a Party with respect to the making of the representations and warranties set forth in ‎Article IV, ‎Article V or ‎Article VI, as applicable. Under no circumstances shall “fraud” include any equitable fraud, constructive fraud, negligent misrepresentation, unfair dealings, or any other fraud or torts based on recklessness or negligence.

“Fully Diluted Number” means the total number of Company Units outstanding as of immediately prior to the Effective Time, determined on a fully-diluted, as-if exercised basis and assuming the exercise (as applicable) and settlement of all Company Options (assuming that all Class A Units and Class A-1 Units underlying Company Options are delivered to the applicable holders and that no Class A and Class A-1 Units are withheld in payment of any applicable exercise price or tax obligations), whether or not exercised, exercisable, settled, eligible for settlement or vested.

“GAAP” means United States generally accepted accounting principles.

“Governing Documents” means (a) in the case of a company or corporation, its certificate of incorporation (or analogous document) and bylaws or memorandum and articles of association as amended from time to time (as applicable), (b) in the case of a limited liability company, its certificate of formation (or analogous document) and limited liability company operating agreement, or (c) in the case of a Person other than a corporation or limited liability company, the documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs.

“Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

“Group Companies” means, collectively, the Company and the Company Subsidiaries.

“Hazardous Materials” means all substances, materials or wastes regulated by, or for which Liability or standards of conduct may be imposed pursuant to, Environmental Laws, including petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials, noise, mold, odor, and per- and polyfluoroalkyl substances.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.

“Indebtedness” means, without duplication, with respect to any Person other than a Group Company or a Blocker, all obligations (including all obligations in respect of principal, accrued and unpaid interest, penalties, breakage costs, fees and premiums and other costs and expenses associated with repayment or acceleration) of such Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar Contracts or instruments, (c) for the deferred purchase price of assets, property, goods or services, business (other than trade payables) or with respect to any conditional sale, title retention, consignment or similar arrangements, (d) any obligation capitalized or required to be capitalized in accordance with GAAP, (e) any letters of credit, bankers acceptances or other obligation by which such Person assured a creditor against loss, in each case to the extent drawn upon or currently payable, (f) for earn-out or contingent payments related to acquisitions or investments (assuming the maximum amount earned), including post-closing price true-ups, indemnifications and seller notes, (g) in respect of dividends declared or distributions payable but unpaid, (h) under derivative financial instruments, including hedges, currency and interest rate swaps and other similar Contracts, (i) all Taxes (including withholding Taxes) deferred pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States), and (j) in the nature of guarantees of the obligations described in clauses (a) through (i) above.

“Insight Blockers” means the Insight Cayman Blocker, the Insight Delaware Blocker, the Insight GBCF Cayman Blocker and the Insight GBCF Delaware Blocker.

“Insight Blocker Owners” means (i) with respect to the Insight GBCF Cayman Blocker, Insight Venture Partners Growth-Buyout Coinvestment Fund (Cayman), L.P., (ii) with respect to the Insight GBCF Delaware Blocker, Insight Venture Partners Growth-Buyout Coinvestment Fund (Delaware), L.P., (iii) with respect to the Insight Cayman Blocker, Insight Venture Partners (Cayman) IX, L.P. and (iv) with respect to the Insight Delaware Blocker, Insight Venture Partners (Delaware) IX, L.P.

“Insight Deemed Contribution Amount” means $62,500,000.

“Insight Member” means Insight E2open Aggregator, LLC.

“Insight Owner Relative Pro Rata Percentage” means, with respect to the Insight Member and each Insight Blocker Owner, the aggregate number of Company Units held by such Insight Member or Insight Blocker Owner, as the case may be, immediately prior to the Closing divided by the aggregate number of Company Units held by the Insight Member and all Insight Blocker Owners immediately prior to the Closing.

“Intellectual Property” means rights in all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice) and invention disclosures, all improvements thereto, and all patents, utility models and industrial designs and all applications for any of the foregoing, together with all reissuances, provisionals, continuations, continuations-in-part, divisions, extensions, renewals and reexaminations thereof, (b) all trademarks, service marks, certification marks, trade dress, logos, slogans, trade names, corporate and business names, Internet domain names, social media accounts and rights in telephone numbers and other indicia of origin, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all works of authorship, copyrightable works, all copyrights and rights in databases, and all applications, registrations, and renewals in connection therewith and all moral rights associated with any of the foregoing, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, algorithms, source code, data analytics, manufacturing and production processes and techniques, technical data and information, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) (“Trade Secret”), (f) all Software and Databases, and (g) all other similar proprietary rights.

“Interested Party” means the Company Equityholders, the Blocker Owners, the Blockers, and any of their respective directors, executive officers or Affiliates (other than any Group Company).

“IT Assets” means Software, systems, Databases, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology equipment, and all associated documentation, in each case, used or held for use in the operation of the Group Companies.

“Knowledge” (a) as used in the phrase “to the Knowledge of the Company” or phrases of similar import means the actual knowledge of any of the Executives, including after reasonable due inquiry of such Executive’s direct reports, (b) as used in the phrase “to the Knowledge of such Blocker” or phrases of similar import means the actual knowledge of any of the officers or managing member of such Blocker, including after reasonable due inquiry and (c) as used in the phrase “to the Knowledge of the Buyer” or phrases of similar import means the actual knowledge of Chinh Chu, Charles Kantor or Douglas Newton, including after reasonable due inquiry.

“Latest Balance Sheet Date” means May 31, 2020.

“Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations, directives, pronouncements, rulings and any Orders of a Governmental Entity, including common law.

“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any Group Company.

“Leases” means all leases, subleases, licenses, concessions and other Contracts pursuant to which any Group Company holds any Leased Real Property (along with all amendments, modifications and supplements thereto).

“Lender Consent” means a written waiver, consent or other amendment to the Credit Agreement permitting the transactions contemplated by this Agreement or otherwise waiving any breach of the Credit Agreement or Event of Default (as defined in the Credit Agreement) that may be deemed to occur as a result of the consummation of the transactions contemplated by this Agreement, in each case, in form and substance acceptable to the Buyer.

“Liability” or “Liabilities” means any and all debts, liabilities, guarantees, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or not accrued, direct or indirect, due or to become due or determined or determinable.

“Liens” means, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority easements, covenants, restrictions and security interests thereon.

“Lookback Date” means the date which is three (3) years prior to the Effective Date.

“Material Adverse Effect” means any event, circumstance or state of facts that, individually or in the aggregate, has had or would reasonably be expected to have, a material and adverse effect upon (a) the business, results of operations or financial condition of the Group Companies, taken as a whole, or (b) the ability of the Group Companies, taken as a whole, to perform their respective obligations and to consummate the transactions contemplated hereby and by the Ancillary Agreements; provided, however, that, with respect to the foregoing clause (a), none of the following will constitute a Material Adverse Effect, or will be considered in determining whether a Material Adverse Effect has occurred: (i) changes that are the result of factors generally affecting the industries or markets in which the Group Companies operate; (ii) changes in Law or GAAP or the interpretation thereof, in each case effected after the Effective Date; (iii) any failure of any Group Company to achieve any projected periodic revenue or earnings projection, forecast or budget prior to the Closing (it being understood that the underlying event, circumstance or state of facts giving rise to such failure may be taken into account in determining whether a Material Adverse Effect has occurred); (iv) changes that are the result of economic factors affecting the national, regional or world economy or financial markets; (v) any change in the financial, banking, or securities markets; (vi) any earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster or act of god; (vii) any national or international political conditions in any jurisdiction in which the Group Companies conduct business; (viii) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (ix) any consequences arising from any action (A) taken by a Party expressly required by this Agreement (other than the Group Companies’ compliance with Section 7.1(a)), (B) taken by any Group Company at the express direction of the Buyer, the Sponsor or any Affiliate thereof or (C) not taken by the Company in compliance with Section 7.1 as a result of the Buyer’s failure to consent to such action pursuant to Section 7.1); (x) epidemics, pandemics, disease outbreaks (including COVID-19), or public health emergencies (as declared by the World Health Organization or the Health and Human Services Secretary of the United States) or any Law or guideline issued by a Governmental Entity, the Centers for Disease Control and Prevention or the World Health Organization or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including COVID-19); (xi) any failure in and of itself to complete one or more Permitted Acquisitions once the definitive agreement with respect thereto has been executed (it being understood that the underlying event, circumstance or state of facts with respect to the Group Companies giving rise to such failure may be taken into account in determining whether a Material Adverse Effect has occurred), or (xii) the announcement or pendency of the transactions contemplated hereby; provided, however, that any event, circumstance or state of facts resulting from a matter described in any of the foregoing clauses (i),(ii), (iv) (v), (vi), (vii), (viii) and (x) may be taken into account in determining whether a Material Adverse Effect has occurred to the extent such event, circumstance or state of facts has a material and disproportionate effect on the Group Companies, taken as a whole, relative to other comparable entities operating in the industries or markets in which the Group Companies operate.

“Material Suppliers” means the top ten (10) suppliers of materials, products or services to the Group Companies, taken as a whole (measured by aggregate amount purchased by the Group Companies) during the twelve (12) months ended February 29, 2020.

“Measurement Time” means 12:01 a.m. Eastern Time on the Closing Date.

“Merger Consideration” means (a) Enterprise Value, plus (b) the amount of Cash and Cash Equivalents, minus (c) the amount of Closing Company Indebtedness, minus (d) the amount of Transaction Expenses, plus (e) the Net Working Capital Adjustment (which may be a negative number), plus (f) the Aggregate Option Exercise Price, plus (g) the Aggregate Participation Levels Amount, minus (h) the Equityholder Representative Expense Amount.

“Merger Sub Interests” means the limited liability company interests of Company Merger Sub.

“Minimum Cash Amount” means at least one billion twenty million dollars ($1,020,000,000) less the amount, if any, by which (a) the amount of Transaction Expenses which are counted for purposes of the Buyer Expense Cap are less than (b) the Buyer Expenses Cap.

“Net Working Capital” means, (a) the consolidated current assets of the Group Companies, minus (b) the consolidated current liabilities of the Group Companies, in each case, determined without duplication as of the Measurement Time and calculated in accordance with the Accounting Principles. Notwithstanding anything herein to the contrary, Net Working Capital shall be determined without taking into account the Net Working Capital of the Permitted Acquisition Targets.

“Net Working Capital Adjustment” means (a) the amount by which Net Working Capital exceeds the Target Working Capital or (b) the amount by which Net Working Capital is less than the Target Working Capital, in each case, if applicable; provided that any amount which is calculated pursuant to clause (b) above shall be a negative number.

“Option Plan” means the Eagle Parent Holdings, LLC 2015 Unit Option Plan, as amended and restated and further amended from time to time.

“Order” means any order, writ, judgment, injunction, temporary restraining order, stipulation, determination, decree or award entered by or with any Governmental Entity or arbitral institution.

“Ordinary Course of Business” means, with respect to any Person, (a) any action taken by such Person in the ordinary course of business consistent with past practice and (b) any other reasonable action taken by such Person in response to the actual or anticipated effect on such Person’s business of COVID-19 or any Pandemic Measure, in each case with respect to this clause (b) in connection with or in response to COVID-19.

“Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the ordinary course of business of which the principal subject matter is not Tax but which contains customary Tax indemnification provisions.

“Other Buyer Shareholder Voting Matters” means (a) the adoption and approval of certain differences between the Buyer Memorandum and Articles and the proposed Buyer Certificate of Incorporation and proposed Buyer Bylaws, (b) the adoption and approval of the EIP, (c) the adoption and approval of a proposal for the adjournment of the Buyer Shareholder Meeting, if necessary, to permit further solicitation of proxies, and (d) the adoption and approval of any other proposals that are required for the consummation of the transactions contemplated hereby that are submitted to, and require the vote of, the Buyer Shareholders in the Form S-4.

“Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any of the Group Companies.

“Pandemic Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, Order, directive, guidelines or recommendations by any Governmental Entity, in each case, in connection with or in response to COVID-19.

“Participation Level” has the meaning given to such term in the Company LLCA.

“Pass-Through Income Tax” means any income Tax with respect to which the Company Equityholders (or any of their direct or indirect owners) would be primarily liable as a matter of Tax Law (e.g., the income Tax liability for items of income, gain, loss, deduction and credit passed-through to owners of an entity treated as a partnership for U.S. federal income Tax purposes).

“Paying Agent Agreement” means the paying agent agreement to be entered into at or prior to Closing by the Buyer, the Company, the Equityholder Representative and the Transfer Agent, in a form to be reasonably agreed by the Buyer, the Company and the Equityholder Representative.

“PCAOB” means the Public Company Accounting Oversight Board.

“PDI Blocker Owners” means collectively, EFFEM Master Fund II Parallel, L.P., EFFEM Master Fund II, L.P. and Performance EFFEM PE Fund, L.P. (Series 2017).

“Pension Agreements” means all agreements and commitments, both of an individual and collective nature, including commitments on the basis of company practice or total commitments, under which any Group Company is obliged, either directly or through an external pensions provider (support fund, direct insurance, retirement fund, pension fund) to provide occupational pension benefits to current or former employees or their surviving dependents under the applicable Law of a jurisdiction outside of the United States.

“Permitted Acquisition” means any acquisition by any Group Company set forth on Schedule 1.5 or consented to by the Buyer pursuant to Section 7.1(b).

“Permitted Acquisition Target” means the Person or Persons, assets or liabilities acquired (whether through stock purchase, merger, asset purchase or otherwise) in connection with a Permitted Acquisition.

“Permitted Equity Financing” means purchases of Buyer Class A Common Stock at on or prior to the Closing by Equity Financing Sources pursuant to Section 8.15(c).

“Permitted Equity Subscription Agreement” means a Contract executed by an Equity Financing Source pursuant to which such Equity Financing Source has agreed to purchase for cash Buyer Class A Common Stock from the Buyer on or prior to the Closing pursuant to Section 8.15(c).

“Permitted Liens” means (a) easements, permits, rights of way, restrictions, covenants, reservations or encroachments, minor defects or irregularities in and other similar Liens of record affecting title to the property which do not materially impair the use or occupancy of such Leased Real Property in the operation of the business of any of the Group Companies conducted thereon, (b) statutory liens for Taxes, assessments or governmental charges or levies imposed with respect to property which are not yet due and payable or which are being contested in good faith through appropriate proceedings (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (c) Liens in favor of suppliers of goods for which payment is not yet due or delinquent (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (d) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s, carrier’s and other similar Liens arising or incurred in the Ordinary Course of Business which are not yet due and payable or which are being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (e) Liens arising under workers’ compensation Laws or similar legislation, unemployment insurance or similar Laws, (f) municipal bylaws, development agreements, restrictions or regulations, and zoning, entitlement, land use, building or planning restrictions or regulations, in each case, promulgated by any Governmental Entity having jurisdiction over the Leased Real Property, which do not materially impair the applicable Group Company’s current use or occupancy of the Leased Real Property, (g) Liens arising under in the case of Leased Real Property, any Liens to which the underlying fee interest in the leased premises (or the land on which or the building in which the leased premises may be located) is subject, including rights of the landlord under the Lease and all superior, underlying and ground Leases and renewals, extensions, amendments or substitutions thereof, (h) Securities Liens and (i) those Liens set forth on Schedule 1.6.

“Person” means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

“Personal Information” means the same as “personal information,” “personal data,” or similar terms under applicable Privacy Laws.

“PIPE Investor” means any Person (other than the Buyer) that has executed a Subscription Agreement.

“PIPE Proceeds” means an amount equal to the cash proceeds from the PIPE Investment.

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period through and including the Closing Date.

“Privacy and Security Requirements” means any and all of the following to the extent applicable to Processing by or on behalf of the Group Companies or otherwise relating to privacy, data and cyber security, or security breach notification requirements and applicable to the Group Companies, to the conduct of their respective businesses, or to any of the IT Assets or any Business Data: (a) all Privacy Laws, (b) provisions relating to Processing of Personal Information in all applicable Privacy Contracts, (c) all applicable Privacy Policies and (d) the Payment Card Industry Data Security Standard.

“Privacy Contracts” means all Contracts between any Group Company and any Person that govern the Processing of Personal Information.

“Privacy Laws” means all applicable Laws pertaining to data protection, data privacy, data security, cybersecurity, cross-border data transfer, and general consumer protection Laws as applied in the context of data privacy, data breach notification, electronic communication, telephone and text message communications, marketing by email or other channels, and other similar Laws

“Privacy Policies” means all written, external-facing policies of any Group Company governing the Processing of Personal Information, including all website and mobile application privacy policies.

“Pro Forma Buyer Class A Common Stock” means the aggregate number of shares of Buyer Class A Common Stock equal to (i) the aggregate number of shares of Buyer Class A Common Stock issued and outstanding immediately prior to the Closing (but after giving effect to the Domestication and the Buyer Share Redemption, other than those redemptions for which a subscription was made to the Buyer to replace such shares redeemed in connection with the Buyer Share Redemption, including the shares of Buyer Class A Common Stock issued pursuant to any Permitted Equity Financing and the Backstop Agreement), plus (ii) the aggregate number of shares of Buyer Class A Common Stock issued upon the conversion of Buyer Class A Ordinary Shares and Buyer Class B Ordinary Shares, plus (iii) the aggregate number of shares of Buyer Class A Common Stock issued pursuant to the consummation of the transactions contemplated in the Forward Purchase Agreement and the Subscription Agreements, plus (iv) the aggregate number of shares of Buyer Class A Common Stock issued to the Blocker Owners as part of such Blocker Owners’ Blocker Merger Consideration, plus (v) the aggregate number of shares of Buyer Class A Common Stock underlying the Restricted Share Units delivered to the holders of Unvested Company Options, plus (vi) the aggregate Class A Common Stock Consideration delivered to holders of Vested Company Options.

“Pro Forma Buyer Class B-1 Common Stock” means the aggregate number of shares of Buyer Class B-1 Common Stock equal to (i) the aggregate number of shares of Buyer Class B-1 Common Stock issued to the Blocker Owners as part of such Blocker Owners’ Blocker Merger Consideration, plus (ii) the aggregate number of shares of Buyer Class B-1 Common Stock equal to the Company Optionholder Restricted Stock Consideration delivered to all Company Optionholders, plus (iii) the aggregate number of shares of Buyer Class B-1 Common Stock delivered to the Sponsor pursuant to the Sponsor Side Letter.

“Pro Forma Buyer Class B-2 Common Stock” means the aggregate number of shares of Buyer Class B-2 Common Stock equal to (i) the aggregate number of shares of Buyer Class B-2 Common Stock issued to the Blocker Owners as part of such Blocker Owners’ Blocker Merger Consideration, plus (ii) the aggregate number of shares of Buyer Class B-2 Common Stock equal to the Company Optionholder Restricted Stock Consideration delivered to all Company Optionholders.

“Pro Forma Buyer Common Units” means a number of Common Units equal to the number of shares of Pro Forma Buyer Class A Common Stock.

“Pro Forma Buyer Series 1 RCUs” means a number of Series 1 RCUs equal to the number of Pro Forma Buyer Class B-1 Common Stock.

“Pro Forma Buyer Series 2 RCUs” means a number of Series 2 RCUs equal to the number of Pro Forma Buyer Class B-2 Common Stock.

“Pro Forma Unitholder Common Units” means a number of shares of Common Units equal to the aggregate Common Unit Consideration delivered to all Company Unitholders.

“Pro Forma Unitholder Series 1 RCUs” means a number of Series 1 RCUs equal to the aggregate Series 1 RCU Consideration delivered to all Company Unitholders.

“Pro Forma Unitholder Series 2 RCUs” means a number of Series 2 RCUs equal to the aggregate Series 2 RCU Consideration delivered to all Company Unitholders.

“Pro Rata Percentage” means, with respect to each Blocker and each Company Equityholder, the percentage equal to the product of (a) 100%, multiplied by (b) the quotient of (i) the aggregate number of Company Units held by such Blocker or such Company Equityholder, as applicable, as of immediately prior to the Effective Time, including any Company Units subject to Company Options held by such Company Equityholder (if any), divided by (ii) the Fully Diluted Number; provided, that for purposes of this definition, the Pro Rata Percentage attributable to any Blocker shall be attributed to such Blocker’s Blocker Owner and the Pro Rata Percentage of any Blocker Owner shall be such Blocker Owner’s pro rata percentage on a fully-diluted basis of the Pro Rata Percentage of the Blocker owned by such Blocker Owner as calculated in accordance with this definition.

“Proceeding” means any action, claim, suit, charge, litigation, complaint, investigation, audit, notice of violation, citation, arbitration, inquiry, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

“Processing” means the creation, collection, use (including for the purposes of sending telephone calls, text messages and emails), storage, maintenance, processing, recording, distribution, transfer, transmission, receipt, import, export, protection (including safeguarding, security measures and notification in the event of a breach of security), access, disposal or disclosure or other activity regarding Personal Information (whether electronically or in any other form or medium).

“Profits Interest Units” means the Class B Units of the Company granted pursuant the applicable Profits Interest Unit grant agreement, subject to the terms of the Company LLCA.

“Reference Price” means $10.00.

“Required Buyer Shareholder Voting Matters” means, collectively, proposals to approve (a) the adoption and approval of this Agreement and the transactions contemplated hereby, (b) the adoption and approval of the Buyer Certificate of Incorporation, (c) the adoption and approval of the issuance of shares of Buyer Class A Common Stock, including any Buyer Class A Common Stock to be issued upon the conversion of Buyer Class B Common Stock and Common Units in connection with the transactions contemplated hereby, including the PIPE Investment, as may be required under the Stock Exchange listing requirements, and (d) the adoption and approval of the Domestication.

“Required Vote” means the affirmative vote of the Buyer Shareholders set forth in the Form S-4 to the extent required to approve the required Buyer Shareholders Voting Matters.

“Restricted Common Units” means “Restricted Common Units” as such term is defined in the Company A&R LLCA.

“Sanctioned Country” means any country or region that is, or in the last five (5) years has been, the subject or target of a comprehensive embargo under Sanctions (including Cuba, Iran, North Korea, Venezuela, Syria and the Crimea region of Ukraine).

“Sanctioned Person” means any Person that is: (a) listed on any applicable U.S. or non-U.S. sanctions-related restricted party list, including OFAC’s Specially Designated Nationals and Blocked Persons List, the EU Consolidated List and HM Treasury’s Consolidated List of Persons Subject to Financial Sanctions, (b) in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a), or (c) organized, resident or located in a Sanctioned Country.

“Sanctions” means all Laws and Orders relating to economic or trade sanctions administered or enforced by the United States (including by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State and the U.S. Department of Commerce), Canada, the United Kingdom, the United Nations Security Council, or the European Union.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Securities Liens” means Liens arising out of, under or in connection with (a) applicable federal, state and local securities Laws and (b) restrictions on transfer, hypothecation or similar actions contained in any Governing Documents.

“Security Breach” means a data security breach or breach of Personal Information under applicable Laws.

“Security Incident” means any successful unauthorized access, use, disclosure, modification or destruction of information or interference with IT Assets.

“Seller Advisor Fees” means those advisor fees set forth on Schedule 1.7.

“Series 1 RCUs” means “Series 1 RCUs” as such term is defined in the Company A&R LLCA.

“Series 1 RCU Consideration” means the aggregate Class A Series 1 RCU Consideration, plus the aggregate Class B Series 1 RCU Consideration.

“Series 2 RCUs” means “Series 2 RCUs” as such term is defined in the Company A&R LLCA.

“Series 2 RCU Consideration” means the aggregate Class A Series 2 RCU Consideration, plus the aggregate Class B Series 2 RCU Consideration.

“Sherman Act” means the Sherman Antitrust Act of 1890.

“Software” means all computer software programs and Databases (and all derivative works, foreign language versions, enhancements, versions, releases, fixes, upgrades and updates thereto), including software compilations, development tools, compilers, comments, user interfaces, menus, buttons and icons, application programming interfaces, files, data scripts, architecture, algorithms, higher level or “proprietary” languages and all related programming and user documentation, whether in source code, object code or human readable form, and manuals, design notes, programmers’ notes and other items and documentation related to or associated with any of the foregoing.

“Sponsor” means CC Neuberger Principal Holdings I Sponsor LLC, a Delaware limited liability company.

“Stock Exchange” means the New York Stock Exchange.

“Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.

“SVB Credit Facility” means that certain Revolving Credit and Security Agreement, dated as of May 8, 2015 (as amended, restated, amended and restated or otherwise modified from time to time), by and among the Company, the other borrowers from time to time party thereto, the banks and financial institutions from time to time party thereto as lenders, and Silicon Valley Bank, as administrative agent.

“Target Working Capital” means negative $91,977,136.

“Tax” or “Taxes” means (a) all net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), sales, use, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, gaming license, capital, estimated, goods and services, fuel, interest equalization, registration, recording, premium, environmental or other taxes, assessments, duties or similar charges, including all interest, penalties and additions imposed with respect to (or in lieu of) the foregoing, imposed by (or otherwise payable to) any Governmental Entity, and, in each case, whether disputed or not, (b) any Liability for, or in respect of the payment of, any amount of a type described in clause (a) of this definition as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of any Law) or being a member of an affiliated, combined, consolidated, unitary, aggregate or other group for Tax purposes and (c) any Liability for, or in respect of the payment of, any amount described in clause (a) or (b) of this definition as a transferee or successor, by contract, by operation of Law, or otherwise.

“Tax Returns” means returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Governmental Entity in connection with, or relating to, Taxes.

“Tax Sharing Agreement” means any agreement or arrangement (including any provision of a Contract) pursuant to which any Group Company is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings.

“Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection, administration or imposition of any Tax.

“Total Individual Company Unitholder Merger Consideration” means, with respect to any Company Unitholder, such Company Unitholder’s Total Individual Company Class A Unitholder Merger Consideration (if any), plus such Company Unitholder’s Total Individual Company Class B Unitholder Merger Consideration (if any).

“Total Class B Units” means the aggregate number of Class B Units held by a Company Class B Unitholder as of immediately prior to the Effective Time.

“Total Company Options” means the aggregate number of Company Options held by a Company Optionholder as of immediately prior to the Effective Time, (assuming all applicable performance based vesting criteria are met).

“Transaction Expenses” means to the extent not paid as of the Closing by the Buyer, any Blocker, any Group Company, the Equityholder Representative, or any Company Equityholder:

(a)            all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers (including the Deferred Discount, as such term is defined in the Trust Agreement), or other advisors, service providers, representatives) including brokerage fees and commissions, incurred or payable by the Buyer or the Sponsor through the Closing in connection with the preparation of the financial statements in connection with the filings required in connection with the transactions contemplated by this Agreement, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Form S-4 and the consummation of the transactions contemplated hereby and thereby (including due diligence and the Domestication) or in connection with Buyer’s pursuit of a Business Combination, and the performance and compliance with all agreements and conditions contained herein or therein to be performed or complied with;

(b)            all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, investment bankers, or other representatives, but other than the Seller Advisor Fees), incurred or payable by the Group Companies, the Blocker Owners, the Blockers, the Equityholder Representative or the Company Equityholders through the Closing in connection with the preparation of the Financial Statements, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Form S-4 and the consummation of the transactions contemplated hereby and thereby;

(c)            any fees, costs and expenses incurred or payable by the Buyer, the Sponsor, the Blocker Owners, the Blockers or any Group Company through the Closing in connection with entry into and the negotiation of the Subscription Agreements and any Permitted Equity Subscription Agreement and the consummation of the transactions contemplated by the Subscription Agreements and any Permitted Equity Subscription Agreement or otherwise related to any financing activities in connection with the transactions contemplated hereby and the performance and compliance with all agreements and conditions contained therein;

(d)            (A) any amounts incurred under or in connection with any retention, severance, transaction, change in control and similar bonuses or arrangements that are owed by a Group Company to any current or former employee or other individual service provider and that will be triggered, solely as a result of the transactions contemplated by this Agreement plus the employer portion of any payroll or other employment Taxes related thereto (including, to the extent not included in the computation of Company Indebtedness or Blocker Indebtedness, all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that any Blocker or any Group Company has elected to defer pursuant to Section 2302 of the CARES Act, and all payroll or other employment Taxes deferred pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States)), in each case, other than severance payments that are triggered by a termination of employment that occurs following the Closing at the direction of any Buyer Party and any amounts payable in connection with any agreement or termination of employment entered into or effectuated at the direction of the Buyer Parties, and (B) the employer portion of any payroll or other employment Taxes attributable to the exercising or terminating of any Vested Company Options;

(e)            all fees, costs and expenses paid or payable pursuant to the Tail Policy;

(f)            all filing fees paid or payable to a Governmental Entity in connection with any filing required to be made under the HSR Act;

(g)            all fees, costs and expenses paid or payable to the Transfer Agent;

(h)            any amounts unpaid under the terms of any Affiliated Transaction, or related to the termination of any Affiliated Transaction;

(i)            all Transfer Taxes; and

(j)            all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, accountants, investment bankers, or other advisors, service providers, representatives) including original issue discount and brokerage fees and commissions, incurred or payable by any of the Buyer, the Sponsor, any of the Group Companies, any Blocker or any Company Equityholder in connection the negotiation, preparation or consummation of the Debt Financing.

provided that if the aggregate amount of fees, costs and expenses under clause (a) and under clause (j) and, solely with respect to fees, costs and expenses incurred or payable by the Buyer or the Sponsor, under clause (c), of this definition of Transaction Expenses are in excess of the Buyer Expense Cap, the aggregate fees, costs and expenses incurred in excess of the Buyer Expense Cap shall not be considered Transaction Expenses solely for the purpose of the calculation of the Merger Consideration (and, for the avoidance of doubt, will not reduce Merger Consideration); and provided, further, that any Transaction Expenses of the type of costs, fees and expenses included as Transaction Expenses in clause (b) of any of the Group Companies solely to the extent in connection with the negotiation, preparation or consummation of any Permitted Acquisition will not be considered Transaction Expenses, Company Indebtedness nor Blocker Indebtedness and shall be excluded from the calculation of Net Working Capital in each case for the purpose of the calculation of the Merger Consideration (and, for the avoidance of doubt, will not reduce Merger Consideration).

“Transaction Tax Deductions” means any amount that is deductible for income Tax purposes (at, for purposes of clause (v) only, a “more likely than not” or higher level of comfort) that is incurred by any Group Company in connection with the transactions contemplated herein (excluding, for the avoidance of doubt, any amount (including with respect to any Transaction Expense) that is or was an obligation of, or incurred or payable by, the Buyer or the Sponsor or their relevant Affiliates and are subject to the Buyer Expense Cap), including (i) the payment of stay bonuses, sales bonuses, change in control payments, severance payments, retention payments or similar payments made by any Group Company on or around the Closing Date or included in the computation of the Net Working Capital; (ii) the fees, expenses and interest (including amounts treated as interest for U.S. federal income Tax purposes and any breakage fees or accelerated deferred financing fees) incurred by any Group Company with respect to the payment of Company Indebtedness by (or for the benefit of) the Group Companies on or prior to the Closing Date; (iii) payments made as a result of the exercise or payment for cancellation of Company Options on or around the Closing Date; (iv) the employer portion of the amount of any employment taxes with respect to the amounts set forth in clause (i) or (iii) of this definition paid by any Group Company on or prior to the Closing Date or included in the computation of Net Working Capital; and (v) the payment of any other Transaction Expenses not included in clauses (i) through (iv). The amount of the Transaction Tax Deductions will be computed assuming that an election is made under Revenue Procedure 2011-29 to deduct 70% of any Transaction Tax Deductions that are success-based fees (as described in Revenue Procedure 2011-29).

“Transfer Agent” means Continental Stock Transfer & Trust Company.

“Transfer Taxes” means all transfer, documentary, sales, use, value added, goods and services, stamp, registration, notarial fees and other similar Taxes and fees incurred in connection with the transactions contemplated hereby.

“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.

“Trust Account” means the trust account established by the Buyer pursuant to the Trust Agreement.

“Trust Agreement” means that certain Investment Management Trust Agreement, dated of April 28, 2020, by and between the Buyer and Continental Stock Transfer & Trust Company, a New York corporation.

“Trustee” means Continental Stock Transfer & Trust Company, acting as trustee of the Trust Account.

“Unauthorized Code” means any virus, Trojan horse, worm, or other Software routines or hardware components designed to permit unauthorized access, to disable, erase, or otherwise harm Software, hardware or data.

“Unvested Company Option” means each outstanding Company Option held by a Company Optionholder as of immediately prior to the Effective Time that is not a Vested Company Option.

“Vested Company Option” means each outstanding Company Option held by a Company Optionholder as of immediately prior to the Effective Time that is vested as of the Effective Time (including after giving effect to any acceleration of vesting of any Company Options as a result of the Closing).

“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar or related Law.

“Warrant Agreement” means that certain Warrant Agreement, dated as of April 28, 2020, between the Buyer and Continental Stock Transfer & Trust Company, a New York corporation.

Article II
THE MERGERS; CLOSING

Section 2.1            Closing Transactions; Mergers.

(a)            The Domestication. On the Closing Date prior to the Blocker Effective Time, the Buyer Effective Time and the Effective Time, the Domestication shall occur.

(b)            The Insight Cayman Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Blocker Effective Time and immediately following the Domestication, Blocker Merger Sub 1 shall be merged with and into the Insight Cayman Blocker. As a result of the Insight Cayman Merger, the separate corporate existence of Blocker Merger Sub 1 shall cease, and the Insight Cayman Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving Insight Cayman Blocker”).

(c)            The Insight Delaware Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Blocker Effective Time and immediately following the Domestication, Blocker Merger Sub 2 shall be merged with and into the Insight Delaware Blocker. As a result of the Insight Delaware Merger, the separate corporate existence of Blocker Merger Sub 2 shall cease, and the Insight Delaware Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving Insight Delaware Blocker”).

(d)            The Insight GBCF Cayman Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Blocker Effective Time and immediately following the Domestication, Blocker Merger Sub 3 shall be merged with and into the Insight GBCF Cayman Blocker. As a result of the Insight GBCF Cayman Merger, the separate corporate existence of Blocker Merger Sub 3 shall cease, and the Insight GBCF Cayman Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving Insight GBCF Cayman Blocker”).

(e)            The Insight GBCF Delaware Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Blocker Effective Time and immediately following the Domestication, Blocker Merger Sub 4 shall be merged with and into the Insight GBCF Delaware Blocker. As a result of the Insight GBCF Delaware Merger, the separate corporate existence of Blocker Merger Sub 4 shall cease, and the Insight GBCF Delaware Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving Insight GBCF Delaware Blocker”).

(f)            The Elliott Eagle Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Blocker Effective Time and immediately following the Domestication:

(i)            each of the Elliott Blocker Owners shall assign and transfer to the Buyer, and the Buyer shall assume from each Elliott Blocker Owner, all of each such Elliott Blocker Owner’s respective right, title and interest in and to the Elliott Blocker Notes, in each case in such Elliott Blocker Owner’s capacity as a lender thereunder (the “Elliott Note Transfer”), which Elliott Note Transfer shall be in a form and substance reasonably agreed by the Buyer (it being understood that as a result of, and in connection with, the Elliott Note Transfer, the Buyer shall become the “Lender” under, and as such term is defined in, the Elliott Blocker Notes); and

(ii)            Blocker Merger Sub 5 shall be merged with and into the Elliott Eagle Blocker.

As a result of the Elliott Merger, the separate corporate existence of Blocker Merger Sub 5 shall cease, and the Elliott Eagle Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving Elliott Eagle Blocker”).

(g)            The PDI Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DGCL and the DLLCA, at the Blocker Effective Time and immediately following the Domestication, Blocker Merger Sub 6 shall be merged with and into the PDI Blocker. As a result of the PDI Merger, the separate corporate existence of Blocker Merger Sub 6 shall cease, and the PDI Blocker shall continue as the surviving company and as a wholly-owned subsidiary of the Buyer (sometimes referred to, in such capacity, as the “Surviving PDI Blocker” and together with the Surviving Insight Cayman Blocker, the Surviving Insight Delaware Blocker, the Surviving Insight GBCF Cayman Blocker, the Surviving Insight GBCF Delaware Blocker and the Surviving Elliott Eagle Blocker, the “Surviving Blockers”).

(h)            The Buyer Mergers. Upon the terms and subject to the conditions set forth herein, and in accordance with the DGCL and the DLLCA, at the Buyer Effective Time and immediately after the Blocker Mergers, each of (i) the Surviving Insight Cayman Blocker, (ii) the Surviving Insight Delaware Blocker, (iii) Surviving Insight GBCF Cayman Blocker, (iv) the Surviving Insight GBCF Delaware Blocker, (v) the Surviving Elliott Eagle Blocker and (vi) the Surviving PDI Blocker shall be merged with and into the Buyer. As a result of the Buyer Mergers, the separate corporate existence of each of (u) the Surviving Insight Cayman Blocker, (v) the Surviving Insight Delaware Blocker, (w) the Surviving Insight GBCF Cayman Blocker, (x) the Surviving Insight GBCF Delaware Blocker, (y) the Surviving Elliott Eagle Blocker and (z) the Surviving PDI Blocker shall cease, and the Buyer shall continue as the surviving company (sometimes referred to, in such capacity, as the “Surviving Buyer”).

(i)            The Company Merger. Upon the terms and subject to the conditions set forth herein, and in accordance with the DLLCA, at the Effective Time, and immediately after the Buyer Mergers, Company Merger Sub shall be merged with and into the Company. As a result of the Company Merger, the separate corporate existence of Company Merger Sub shall cease, and the Company shall continue as the surviving company (sometimes referred to, in such capacity, as the “Surviving Company”).

Section 2.2            Closing; Effective Time.

(a)            The closing of the Blocker Mergers (“Blocker Merger Closing”), the closing of the Buyer Mergers (the “Buyer Merger Closing”) and the closing of the Company Merger (the “Company Merger Closing”) and the closing of the other transactions contemplated hereby (together with the Blocker Merger Closing, the Buyer Merger Closing and the Company Merger Closing, the “Closing”) shall take place by conference call and by exchange of signature pages by email or other electronic transmission at 9:00 a.m. Eastern Time on (i) the fourth (4^th) Business Day after the conditions set forth in ‎Article XI have been satisfied, or, if permissible, waived by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or (ii) such other date and time as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”); provided, however, that the Closing shall occur no earlier than the first Business Day that is at least 45 days after the Effective Date without the written consent of the Company.

(b)            On the Closing Date, the Parties shall cause the Blocker Mergers to be consummated simultaneously by filing certificates of merger (the “Blocker Certificates of Merger”) with the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with, Section 251 of the DGCL and Section 18-209 of the DLLCA, as applicable (the date and time of acceptance by the Secretary of State of the State of Delaware of the last of such filings, or, if another date and time is specified in such filings, such specified date and time, being the “Blocker Effective Time”).

(c)            On the Closing Date, and immediately after the Blocker Effective Time, the Parties shall cause the Buyer Mergers to be consummated by filing certificates of merger (the “Buyer Certificates of Merger”) with the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with, Section 251 of the DGCL and Section 18-209 of the DLLCA, as applicable (the date and time of acceptance by the Secretary of State of the State of Delaware of the last of such filing, or, if another date and time is specified in such filing, such specified date and time, being the “Buyer Effective Time”).

(d)            On the Closing Date, and immediately after the Buyer Effective Time, the Parties shall cause the Company Merger to be consummated by filing a certificate of merger (the “Company Certificate of Merger”, and together with the Blocker Certificates of Merger and the Buyer Certificates of Merger, the “Certificates of Merger”) with the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with, Section 18-209 of the DLLCA, as applicable (the date and time of acceptance by the Secretary of State of the State of Delaware of such filing, or, if another date and time is specified in such filing, such specified date and time, being the “Effective Time”).

Section 2.3            Effects of the Mergers.

(a)            At the Blocker Effective Time, the effect of the Insight Cayman Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of Insight Cayman Blocker and Merger Sub 1 shall vest in the Surviving Insight Cayman Blocker, and all debts, liabilities, duties and obligations of Insight Cayman Blocker and Merger Sub 1 shall become the debts, liabilities, duties and obligations of the Surviving Insight Cayman Blocker.

(b)            At the Blocker Effective Time, the effect of the Insight Delaware Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of Insight Delaware Blocker and Merger Sub 2 shall vest in the Surviving Insight Delaware Blocker, and all debts, liabilities, duties and obligations of Insight Delaware Blocker and Merger Sub 2 shall become the debts, liabilities, duties and obligations of the Surviving Insight Delaware Blocker.

(c)            At the Blocker Effective Time, the effect of the Insight GBCF Cayman Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of Insight GBCF Cayman Blocker and Merger Sub 3 shall vest in the Surviving Insight GBCF Cayman Blocker, and all debts, liabilities, duties and obligations of Insight GBCF Cayman Blocker and Merger Sub 3 shall become the debts, liabilities, duties and obligations of the Surviving Insight GBCF Cayman Blocker.

(d)            At the Blocker Effective Time, the effect of the Insight GBCF Delaware Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of Insight GBCF Delaware Blocker and Merger Sub 4 shall vest in the Surviving Insight GBCF Delaware Blocker, and all debts, liabilities, duties and obligations of Insight GBCF Delaware Blocker and Merger Sub 4 shall become the debts, liabilities, duties and obligations of the Surviving Insight GBCF Delaware Blocker.

(e)            At the Blocker Effective Time, the effect of the Elliott Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of Elliott Eagle Blocker and Merger Sub 5 shall vest in the Surviving Elliott Eagle Blocker, and all debts, liabilities, duties and obligations of Elliott Eagle Blocker and Merger Sub 5 shall become the debts, liabilities, duties and obligations of the Surviving Elliott Eagle Blocker.

(f)            At the Blocker Effective Time, the effect of the PDI Merger shall be as provided in the applicable provisions of the DGCL and DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Blocker Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of PDI Blocker and Merger Sub 6 shall vest in the Surviving PDI Blocker, and all debts, liabilities, duties and obligations of PDI Blocker and Merger Sub 6 shall become the debts, liabilities, duties and obligations of the Surviving PDI Blocker.

(g)            At the Buyer Effective Time, the effect of the Buyer Mergers shall be as provided in the applicable provisions of the DLLCA or the DGCL, as applicable. Without limiting the generality of the foregoing, and subject thereto, at the Buyer Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of each of (i) the Surviving Insight Cayman Blocker, (ii) the Surviving Insight Delaware Blocker, (iii) the Surviving Insight GBCF Cayman Blocker, (iv) the Surviving Insight GBCF Delaware Blocker, (v) the Surviving Elliott Eagle Blocker and (vi) the Surviving PDI Blocker and the Buyer shall vest in the Surviving Buyer, and all debts, liabilities, duties and obligations of each of (u) the Surviving Insight Cayman Blocker, (v) the Surviving Insight Delaware Blocker, (w) the Surviving Insight GBCF Cayman Blocker, (x) the Surviving Insight GBCF Delaware Blocker, (y) the Surviving Elliott Eagle Blocker and (z) the Surviving PDI Blocker and the Buyer shall become the debts, liabilities, duties and obligations of Surviving Buyer.

(h)            At the Effective Time, the effect of the Company Merger shall be as provided in the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, except as otherwise provided herein, all the property, assets, rights, privileges, powers and franchises of the Company and Company Merger Sub shall vest in the Surviving Company, and all debts, liabilities, duties and obligations of the Company and Company Merger Sub shall become the debts, liabilities, duties and obligations of the Surviving Company.

Section 2.4            Governing Documents.

(a)            At the Blocker Effective Time, the certificates of formation and operating agreements of Merger Sub 1, Merger Sub 2, Merger Sub 3, Merger Sub 4, and Merger Sub 5 as in effect immediately prior to the Blocker Effective Time shall, in accordance with the DLLCA and applicable Law, become the certificate of formation and operating agreement of the Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker, and Surviving Elliott Eagle Blocker, respectively.

(b)            At the Blocker Effective Time, the certificate of incorporation and bylaws of PDI Blocker as in effect immediately prior to the Blocker Effective Time shall, in accordance with the DGCL and DLLCA and applicable Law, become the certificate incorporation and the bylaws of the Surviving PDI Blocker.

(c)            At the Buyer Effective Time, the Governing Documents of the Buyer in effect immediately prior to the Buyer Effective Time shall, in accordance with the DGCL and applicable Law, become the certificate of incorporation and the bylaws of the Surviving Buyer.

(d)            At the Effective Time, the Company LLCA shall be amended and restated to be in the form attached hereto as Exhibit A, which, from and after the Effective Time shall be the limited liability company agreement of the Surviving Company until duly amended in accordance with its terms and the DLLCA.

Section 2.5            Directors and Officers.

(a)            At the Blocker Effective Time, (i) (x) the managers of Merger Sub 1, Merger Sub 2, Merger Sub 3, Merger Sub 4, Merger Sub 5 prior to the Blocker Effective Time shall be the initial managers of the Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker and Surviving Elliott Eagle Blocker, respectively, each to serve in accordance with the Governing Documents of the Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker and Surviving Elliott Eagle Blocker, as applicable and (y) the initial directors of the Surviving PDI Blocker shall be appointed by the Buyer, each to serve in accordance with the Governing Documents of the Surviving PDI Blocker, and (ii) the officers of Merger Sub 1, Merger Sub 2, Merger Sub 3, Merger Sub 4, Merger Sub 5 and Merger Sub 6 immediately prior to the Blocker Effective Time shall be the initial officers of the Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker, Surviving Elliott Eagle Blocker and Surviving PDI Blocker, respectively, each to hold office in accordance with the Governing Documents of the Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker, Surviving Elliott Eagle Blocker and Surviving PDI Blocker.

(b)            Effective as of the Closing, (i) the Sponsor and the Equityholder Representative shall cooperate such that the board of directors of the Buyer shall be composed as set forth in the Investor Rights Agreement, to serve in accordance with the Governing Documents of the Buyer, and (ii) such board of directors of the Buyer shall appoint the officers of the Buyer to be effective from and after the Closing, to serve in accordance with the Governing Documents of the Buyer.

(c)            Effective as of the Closing, the Buyer (through the Buyer’s board of directors) shall appoint the officers of the Surviving Company, to be effective from and after the Closing, each to hold office in accordance with the Company A&R LLCA. The Surviving Company shall be manager-managed, and in connection with the amendment and restatement of the Company LLCA, the Buyer shall be admitted as a member and the manager of the Company pursuant to the terms of the Company A&R LLCA.

Article III
CONVERSION OF SECURITIES; CONTRIBUTION; MERGER CONSIDERATION; CLOSING DELIVERIES

Section 3.1            Conversion of Securities; Contribution.

(a)            The Blocker Mergers.

(i)            Blocker Merger Sub Interests. At the Blocker Effective Time, by virtue of the Blocker Mergers and without any action on the part of any Party, (A) each limited liability company interest of each of Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4 and Blocker Merger Sub 5 that is issued and outstanding immediately prior to the Blocker Effective Time shall cease to be outstanding and shall be converted into one validly issued limited liability company unit of Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker and Surviving Elliott Eagle Blocker, respectively, and shall constitute the total amount of issued and outstanding limited liability company interests of Surviving Insight Cayman Blocker, Surviving Insight Delaware Blocker, Surviving Insight GBCF Cayman Blocker, Surviving Insight GBCF Delaware Blocker and Surviving Elliott Eagle Blocker, respectively, as of immediately following the Blocker Effective Time, and (B) each limited liability company interest of Blocker Merger Sub 6 that is issued and outstanding immediately prior to the Blocker Effective Time shall cease to be outstanding and shall be converted into one validly issued, fully paid and non-assessable share of common stock of the Surviving PDI Blocker. After the Blocker Mergers, the Buyer shall own all of the issued and outstanding limited liability company interests or shares of capital stock, as applicable, of each Surviving Blocker (such limited liability company interests or shares of capital stock, the “Surviving Blocker Interests”).

(ii)            Blocker Equity Interests. At the Blocker Effective Time, by virtue of the Blocker Mergers and without any action on the part of any Party, the Equity Interests of each Blocker that are issued and outstanding immediately prior to the Blocker Effective Time (other than Cancelled Equity Interests) shall, at the Blocker Effective Time, be cancelled, shall cease to exist and shall no longer be outstanding and, upon each Blocker Owner’s execution of a Blocker Letter of Transmittal, shall be converted into the right to receive (A) in the aggregate with respect to such Equity Interests of such Blocker, the Blocker Merger Consideration for such Blocker, provided, that with respect to the Elliott Merger, the Blocker Merger Consideration shall be (x) received in exchange for the Equity Interests of the Elliott Eagle Blocker and the Elliott Blocker Notes and (y) allocated to the Equity Interests of the Elliott Eagle Blocker and the Elliott Blocker Notes, in each case, in the manner set forth on Schedule 3.1(a)(ii), (B) a portion of the distributions based on such Blocker Owner’s Pro Rata Percentage of the Equityholder Representative Expense Account (if any), and (C) any cash in lieu of any fractional share (clauses (A) through (C) collectively, the “Total Individual Blocker Merger Consideration”). No holder of Blocker Equity Interests, when so converted pursuant to this ‎Section 3.1(a)(ii), shall have any further rights with respect thereto.

(b)            The Buyer Mergers. At the Buyer Effective Time, by virtue of the Buyer Mergers and without any action on the part of any Party, each Surviving Blocker Interest that is issued and outstanding immediately prior to the Buyer Effective Time shall be cancelled, shall cease to exist and shall no longer be outstanding. In connection with the Buyer Mergers, the Buyer shall, in accordance ‎Section 2.3(g), directly own all of the Company Units held by the Surviving Blockers immediately prior to the Buyer Effective Time.

(c)            The Company Merger.

(i)            Company Merger Sub Interests. At the Effective Time, by virtue of the Company Merger and without any action on the part of any Party, all of the Merger Sub Interests shall, at the Effective Time, be cancelled for no consideration, shall cease to exist and shall no longer be outstanding.

(ii)            Company Units. At the Effective Time, by virtue of the Company Merger and without any action on the part of any Party, all the Company Units that are issued and outstanding immediately prior to the Effective Time (other than Cancelled Equity Interests) shall, at the Effective Time, be cancelled, shall cease to exist and shall no longer be outstanding and, upon such Company Unitholder’s execution of a Company Unitholder Letter of Transmittal, shall be converted into the right to receive (and upon such conversion pursuant to this ‎Section 3.1(c)(ii) shall have no further rights with respect thereto):

(A)            With respect to any Company Class A Units held by a Company Unitholder other than the Buyer: (1) in the aggregate with respect to all such Company Class A Units held by such Company Unitholder, the right to receive the Company Class A Unitholder Merger Consideration, (2) a portion of the distributions based on such Company Unitholder’s respective Pro Rata Percentage of the Equityholder Representative Expense Account (if any), and (3) any cash in lieu of any fractional share (clauses (1) through (3) collectively, the “Total Individual Company Class A Unitholder Merger Consideration”);

(B)            With respect to any Company Class B Units, whether vested or unvested (assuming all applicable performance based vesting criteria are met) held by a Company Unitholder other than the Buyer: (1) in the aggregate with respect to all such Company Class B Units held by such Company Unitholder, the right to receive the Company Class B Unitholder Merger Consideration, (2) a portion of the distributions based on such Company Unitholder’s respective Pro Rata Percentage of the Equityholder Representative Expense Account (if any), and (3) any cash in lieu of any fractional share (clauses (1) through (3) collectively, the “Total Individual Company Class B Unitholder Merger Consideration”); and

(C)            With respect to any Company Units held by the Buyer: (1) the Pro Forma Buyer Common Units, less the Contribution Common Units, (2) the Pro Forma Buyer Series 1 RCUs and (3) the Pro Forma Buyer Series 2 RCUs.

(iii)            Company Options. At the Effective Time, by virtue of the Company Merger and without any action on the part of any Party, all the Company Options that are issued and outstanding immediately prior to the Effective Time shall, at the Effective Time, be cancelled, shall cease to exist and shall no longer be outstanding and, upon such Company Optionholder’s execution of a Company Optionholder Letter of Transmittal, shall be converted into the right to receive (and upon such conversion pursuant to this Section 3.1(c)(iii) shall have no further rights with respect thereto):

(A)            With respect to each Company Optionholder who holds a Vested Company Option: (1) in the aggregate with respect to all such Vested Company Options held by such Company Optionholder, the Company Optionholder Merger Consideration, (2) a portion of the distributions equal to such Company Optionholder’s respective Pro Rata Percentage of the Equityholder Representative Expense Account (if any), and (3) any cash in lieu of any fractional share (clauses (1) through (3) collectively, the “Total Individual Company Optionholder Merger Consideration”). For purposes of this Section 3.1(c)(iii)(A), the Company Optionholder’s Company Rollover Options, Pro Rata Percentage and Company Cash-Out Options (but not, for the avoidance of doubt, the Fully Diluted Number) shall be determined assuming the Company Optionholder only held the Vested Company Options; and

(B)            With respect to each Company Optionholder who holds an Unvested Company Option, in lieu of the Total Individual Company Optionholder Merger Consideration, (1) an award of restricted share units representing the right to receive a number of shares of Buyer Class A Common Stock equal to (x) the Cancelled Option Value, divided by (y) the Reference Price (the “Restricted Share Units”), (2) a portion of the distributions equal to such Company Optionholder’s respective Pro Rata Percentage of the Equityholder Representative Expense Account (if any) in respect of the Unvested Company Options, and (3) the Company Optionholder Restricted Stock Consideration in respect of such Unvested Company Options. The Restricted Share Units and Company Optionholder Restricted Stock Consideration delivered in accordance with this Section 3.1(c)(iii)(B) shall be subject to the same vesting terms as were applicable to the corresponding Company Options to which they relate, with shares subject to such Restricted Share Units settled on the later to occur of (x) the first Business Day following applicable vesting date, and (y) the expiration of any restrictions on transferability applicable to such shares; provided, that, notwithstanding the foregoing, shares subject to such Restricted Share Units shall be settled no later than two and one-half (2½) months following the last day of the fiscal year in which such vesting date occurs. The “Cancelled Option Value” shall mean, with respect to each Unvested Company Option, an amount equal to (x) the value of the aggregate Class A Common Stock Consideration, plus (y) the Company Optionholder Cash Consideration (such portion, the “Cancelled Cash Portion”) that would have been payable to the applicable Company Optionholder pursuant to Section 3.1(c)(iii)(A) if the Unvested Company Option had been vested as of the Effective Time. For the avoidance of doubt, in no event will any Company Optionholder be entitled to receive Class A Common Stock Consideration or Company Optionholder Cash Consideration in respect of any Unvested Company Options.

(iv)            Notwithstanding anything herein to the contrary, the Cancelled Cash Portion as of the Effective Time shall be retained by Buyer, and such amount of cash shall be utilized by Buyer to redeem a pro-rata number of shares of Class A Common Stock held by each holder of Vested Company Options as of immediately following the Effective Time at a price per share price equal to the Reference Price. Any amount of cash shall be applied to redeem a number of shares of Class A Common Stock on a pro rata basis in respect of all holders of Vested Company Options, such proceeds delivered (i) first to the Company to fund any portion of the Applicable Withholding Amount that is not satisfied by the Company Optionholder Cash Consideration payable to such former holder of Vested Company Options at the Effective Time, and (ii) second directly to the former holders of Vested Company Options promptly following, but in all events within ten (10) Business Days following the date the Applicable Withholding Amount is remitted to the applicable taxing authorities. To the extent there is not sufficient cash to redeem a share of Class A Common Stock in full such amount of cash will be retained by the Buyer. Prior to Closing, Seller shall take, or cause the Company to take, all necessary or appropriate actions to effectuate the provisions of Sections 3.1(c)(iii), (iv) and (v) and all actions necessary so that the redemptions by Buyer set forth in this Section 3.1(c)(iv) may be effectuated without the consent of the former holders of Vested Company Options. The aggregate amount of cash and shares of Buyer Class A Common Stock, Buyer Class B-1 Common Stock and Buyer Class B-2 Common Stock delivered or deliverable pursuant to Sections 3.1(c)(iii), (iv) and (v) shall not exceed the applicable amounts that would have been delivered to all Company Optionholders if all of the Unvested Company Options were deemed to be Vested Company Options immediately before the Effective Time.

(v)            Subject to ‎Section 3.4, all payments made pursuant to Section 3.1(c)(iii) shall be made (without interest and net of the Applicable Withholding Amount) by or on behalf of the Surviving Company to each Company Optionholder, with the Applicable Withholding Amount applied in accordance with the Company’s standard payroll practices.

(vi)            Any Equity Interests issued hereunder as Merger Consideration hereunder shall bear a restrictive legend that prohibits transfers of such Equity Interests in a manner that would be inconsistent with the Lock-Up Agreement.

(d)            Equity Interests Held in Treasury or Owned. (i) At the Blocker Effective Time, any limited liability company interests or other Equity Interests of a Blocker held in the treasury of such Blocker or owned by such Blocker immediately prior to the Blocker Effective Time shall be cancelled and extinguished without any conversion thereof, and no payment shall be made with respect thereto and (ii) at the Effective Time, any Company Units held in the treasury of the Company or owned by any Subsidiary of the Company immediately prior to the Effective Time shall be cancelled and extinguished without any conversion thereof, and no payment shall be made with respect thereto (any such limited liability company interests or other Equity Interests or such Company Units contemplated by clauses (i) and (ii), “Cancelled Equity Interests”).

(e)            Company LLCA Amendment and Restatement. In connection with the Company Merger, the Company LLCA shall be amended and restated in substantially the form attached hereto as Exhibit A (the “Company A&R LLCA”) to, among other things, reflect the Company Merger, including the conversion of Company Units set forth in Section 3.1(c), as set forth in the Company A&R LLCA (the “LLCA Amendment and Restatement”). For the avoidance of doubt, the Company A&R LLCA shall reflect that the Buyer holds a number of Pro Forma Buyer Common Units equal to the number of shares of Pro Forma Buyer Class A Common Stock, a number of Pro Forma Buyer Series 1 RCUs equal to the number of shares of Pro Forma Buyer Class B-1 Common Stock and a number of Pro Forma Buyer Series 2 RCUs equal to the number of shares of Pro Forma Buyer Class B-2 Common Stock and the Company Unitholders hold Pro Forma Unitholder Common Units, Pro Forma Unitholder Series 1 RCUs and Pro Forma Unitholder Series 2 RCUs and that no other Equity Interests are outstanding.

Section 3.2            Estimated Merger Consideration.

(a)            The aggregate consideration payable with respect to the Mergers taken together, shall consist of (i) the Aggregate Blocker Merger Consideration, plus (ii) the Aggregate Company Unitholder Merger Consideration, plus (iii) the Aggregate Company Optionholder Merger Consideration, plus (iv) the Equityholder Representative Expense Amount. It is the intent of the Parties that the sum of (w) the number of shares of Buyer Class A Common Stock issuable to the Blocker Owners pursuant to the Blocker Mergers, plus the number of shares of Buyer Class A Common Stock issuable to Company Optionholders pursuant to Restricted Share Units, plus the number of shares of Buyer Class A Common Stock issuable to holders of Vested Company Options hereunder, plus the number of Common Units issuable to the Company Unitholders pursuant to the Company Merger shall be equal (without giving effect to the payment of cash in lieu of any fractional share or units) to the number of shares equal to (i) the (A) Merger Consideration less (B) the difference between the Base Aggregate Cash Amount and the aggregate Cancelled Cash Portion, divided by (ii) the Reference Price, (x) the number of shares of Buyer Class B-2 Common Stock issuable pursuant to the Blocker Mergers, plus the number of shares of Buyer Class B-2 Common Stock issuable to the Company Optionholders pursuant to the Company Merger, plus the number of Series 2 RCUs issuable to the Company Unitholders pursuant to the Company Merger shall be equal to (without giving effect to the payment of cash in lieu of any fractional share or units) 6,000,000, (y) the number of shares of Buyer Class B-1 Common Stock issuable pursuant to the Blocker Mergers, plus the number of shares of Buyer Class B-1 Common Stock issuable to the Company Optionholders pursuant to the Company Merger, plus the number of Series 1 RCUs issuable to the Company Unitholders pursuant to the Company Merger shall be equal to (without giving effect to the payment of cash in lieu of any fractional share or unit) 10,000,000, and (z) the number of shares of Buyer Class V Voting Stock issuable to Company Unitholders pursuant to the Company Merger shall equal the number of Common Units held by the Company Unitholders following the Company Merger, and the cash paid hereunder as Merger Consideration shall be no greater than the Adjusted Aggregate Cash Amount less the Cancelled Cash Portion. Notwithstanding anything to the contrary contained herein, the provisions of this Agreement, including Sections 3.1(c)(iii), (iv) and (v) shall be adjusted as necessary to give effect to this Section 3.2(a). For the avoidance of doubt, if the Estimated Merger Consideration is less than seven hundred million ($700,000,000), no Equity Securities of Buyer will be issued as Estimated Merger Consideration (other than shares of Buyer Class B-1 Common Stock, Buyer Class B-2 Common Stock, Series 1 RCUs and Series 2 RCUs.

(b)            Estimated Merger Consideration; Estimated Closing Blocker Indebtedness.

(i)            No later than five (5) Business Days prior to the Closing, each Blocker shall deliver to the Company and the Buyer a good faith estimate of such Blocker’s Closing Blocker Indebtedness (such Blocker’s “Estimated Closing Blocker Indebtedness”).

(ii)            No later than three (3) Business Days prior to the Closing, the Company shall deliver to the Buyer: (i) a good faith estimate of the Merger Consideration (the “Estimated Merger Consideration”) pursuant to which the Company shall (A) use the actual Enterprise Value and (B) estimate (1) the amount of Cash and Cash Equivalents, (2) the amount of Closing Company Indebtedness, (3) the amount of Transaction Expenses, (4) the amount of the Net Working Capital Adjustment, (5) the Aggregate Permitted Acquisition Price Amount and (6) the Aggregate Option Exercise Price, and (ii) the Allocation Schedule as a schedule thereto ((i) and (ii) together, the “Estimated Closing Statement”). Following delivery of the Estimated Closing Statement, the Company will provide the Buyer, its accountants and other representatives with a reasonable opportunity to review the Estimated Closing Statement and the Company shall consider in good faith the Buyer’s, its accountant’s and its other representative’s reasonable comments thereto (or to any component thereof) (it being understood that the Buyer’s approval of the Estimated Closing Statement will not be a condition to the Buyer’s obligation to consummate the transactions contemplated hereunder and the Company shall have no obligation to revise the Estimated Closing Statement to reflect any comments provided by the Buyer, its accountants or its other representatives). The Equityholder Representative (on behalf of the Blocker Owners and the Company Equityholders) hereby acknowledges and agrees that the Buyer may rely upon the Allocation Schedule, and in no event will the Buyer or any of its Affiliates (including the Surviving Company) have any liability to any Blocker Owner, Company Equityholder or other Person with respect to the allocation of the Merger Consideration payable under this Agreement or pursuant to the Mergers or on account of payments made in accordance with the terms hereof as set forth in the Allocation Schedule; provided, however, that in no event shall the amounts set forth on the Allocation Schedule result in, or require the Buyer to issue or pay hereunder, an amount greater than the aggregate consideration as set forth in Section 3.2(a).

(c)            Payment of the Blocker Merger Consideration and the Company Unitholder Merger Consideration. At the Effective Time, the Buyer shall (A) cause the Transfer Agent to provide to each Blocker Owner and Company Unitholder immediately prior to the Effective Time, evidence of book-entry shares representing the number of whole shares of Buyer Class A Common Stock, Buyer Class B Common Stock and Buyer Class V Voting Stock to which such Blocker Owner or Company Unitholder is entitled to, as applicable, pursuant to ‎Section 3.1(a)(ii) and ‎Section 3.1(c)(ii)(A), respectively and (B) cause the Transfer Agent to pay an amount in cash equal to (1) the amount such Blocker Owner or Company Unitholder is entitled to pursuant to ‎Section 3.1(a)(ii) and ‎Section 3.1(c)(ii)(A), respectively, plus (2) any cash in lieu of any fractional share which such Blocker Owner or Company Unitholder, as applicable, has the right to receive in respect of such Equity Interests or Company Units held by such Blocker Owner or Company Unitholder, by wire transfer of immediately available funds to the account such Blocker Owner or such Company Unitholder has identified in such Blocker Owner’s Blocker Letter of Transmittal or such Company Unitholder’s Company Unitholder Letter of Transmittal. It is expressly understood and agreed that (w) the delivery of the shares of Buyer Class A Common Stock, Buyer Class B Common Stock and Buyer Class V Voting Stock and payment of cash under this ‎Section 3.2(c), (x) the delivery of the Aggregate Company Optionholder Merger Consideration to the Surviving Company or its designee under ‎Section 3.2(d), (y) the delivery of any shares of Buyer Class A Common Stock, Buyer Class B Common Stock and Buyer Class V Voting Stock (if any) pursuant to Section 3.5 and (z) payment of cash in lieu of any fractional share pursuant to Section 3.4(c) shall be in full satisfaction of Buyer’s obligation with respect to such amounts, and, once paid in accordance with the terms hereof, Buyer and its Affiliates shall have no liability to the Equityholder Representative, any Blocker Owner, Blocker or Company Equityholder or any other Person for any amounts in respect of the same.

(d)            Payment of Company Optionholder Merger Consideration. At the Effective Time, the Buyer shall (i) cause the Transfer Agent to provide to each Company Optionholder (A) evidence of book-entry shares representing the number of whole shares representing the aggregate Class A Common Stock Consideration in respect of each Vested Company Option and (B) evidence of book-entry shares representing the number of whole shares representing the aggregate Company Optionholder Restricted Stock Consideration, (ii) shall pay to the Surviving Company (A) cash in an amount equal to the aggregate Company Optionholder Cash Consideration in respect of all Vested Company Options and (B) the aggregate amount of cash payable to the Company Optionholders in lieu of any fractional share, and (iii)  provide each holder of Unvested Options a grant agreement evidencing each Restricted Share Unit granted in respect of such holder’s Unvested Company Options. Subject to ‎Section 3.4, all payments of Closing Company Optionholder Merger Consideration shall be made (without interest and net of the Applicable Withholding Amount) by or on behalf of the Surviving Company to each Company Optionholder who holds Vested Company Options, with the Applicable Withholding Amount applied in accordance with the Company’s standard payroll practices; provided, that the Company Optionholder Cash Consideration payable in respect of the Vested Company Options shall be utilized by the Company to first fund the Applicable Withholding Amount in respect of the Company Optionholder Merger Consideration, and the Company Optionholder Cash Consideration that would have been delivered to holders of Unvested Company Options if such holders held Vested Company Options hereunder, shall be utilized by the Company applied in the manner prescribed in Section 3.1(c)(iv).

(e)            Buyer Contribution; Payment of Other Amounts at Closing.

(i)            Buyer Contribution. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time:

(A)            The Buyer shall contribute to the Surviving Company, as a capital contribution in exchange for a portion of its Common Units (such Common Units, the “Contribution Common Units”) acquired in connection with the Company Merger, (i) cash in the amount of Available Closing Date Equity (after giving effect to the Buyer Share Redemptions), less (A) the Adjusted Aggregate Cash Amount, (B) the Cancelled Cash Portion and (C) the aggregate amount payable by the Buyer in lieu of any fractional share of Buyer Class A Common Stock, Buyer Class B Common Stock and Buyer Class V Voting Stock pursuant to ‎Section 3.4(c) (the “Buyer Contribution Amount”).

(B)            The Surviving Company shall pay or cause to be paid, out of the Buyer Contribution Amount, the amount set forth in the pay-off letter in respect of any Company Indebtedness as of the Measurement Time under the SVB Credit Facility (such amount the “SVB Payoff Amount”), which pay-off letter shall be customary and reasonably acceptable to the Buyer, and provide that, if such aggregate amount so identified is paid on the Closing Date, such Company Indebtedness shall be repaid in full, that all Liens (except for Permitted Liens) affecting any property and/or proceeds of property of any Group Company will be released to the account(s) set forth therein and that the relevant lender and/or administrative agent shall forthwith execute and deliver to the Buyer all terminations and releases as reasonably requested necessary to evidence the foregoing termination (the “SVB Payoff Letter”);

(C)            The Surviving Company shall pay or cause to be paid, out of the Buyer Contribution Amount, the Transaction Expenses to the accounts provided by the Parties at least one (1) Business Day prior to the Closing Date (the “Transaction Expenses Amount”); and

(D)            (1) If the Debt Financing is not consummated prior to or substantially contemporaneously with the Closing, the Company shall have delivered the Lender Consent and the Surviving Company shall pay or cause to be paid to the Existing Lenders a payoff amount equal to the Buyer Contribution Amount, less the SVB Payoff Amount, less the Transaction Expenses Amount, or such lesser amount as agreed between the Buyer and the Company. (2) If the Debt Financing is consummated prior to or substantially contemporaneously with the Closing, the Surviving Company shall pay, out of the Buyer Contribution Amount or available funds from the Debt Financing, the amount set forth in the pay-off letter in respect of any Company Indebtedness as of the Measurement Time under the Credit Facility, which pay-off letter shall be customary and reasonably acceptable to the Buyer, and provide that, if such aggregate amount so identified is paid on the Closing Date, such Company Indebtedness shall be repaid in full, that all Liens (except for Permitted Liens) affecting any property and/or proceeds of property of any Group Company will be released to the account(s) set forth therein and that the relevant lender and/or administrative agent shall forthwith execute and deliver to the Buyer all terminations and releases as reasonably requested necessary to evidence the foregoing termination (the “Golub Payoff Letter”).

(ii)            Payment of Other Amounts at Closing. On the terms and subject to the conditions set forth herein, on the Closing Date, immediately after the Effective Time:

(A)            The Buyer shall pay the Equityholder Representative Expense Amount to the Equityholder Representative Expense Account to the account provided to the Buyer by the Equityholder Representative at least three (3) Business Days prior to the Closing Date; and

(B)            The Buyer shall pay, on behalf of all Blocker Owners and Company Equityholders, the Seller Advisor Fees to the account or accounts provided to the Buyer by the Equityholder Representative at least one (1) Business Day prior to the Closing Date.

(f)            Designation of Elliott Merger Consideration. For purposes of this Agreement and for U.S. federal income tax purposes, the cash portion of the Closing Blocker Merger Consideration that each Elliott Blocker Owner is entitled to receive pursuant to Section 3.1(a)(ii) shall be treated in accordance with Schedule 3.1(a)(ii).

Section 3.3           Treatment of Options.

(a)            Prior to the Closing, the Company shall take the appropriate actions pursuant to the Option Plan (and the underlying option agreements) that are necessary to give effect to the provisions of ‎Section 3.1(c)(iii) with respect to Company Options.

(b)            The Company shall take all actions necessary to terminate the Option Plan and all Company Options effective as of the Effective Time, and no Company Optionholder shall have any rights thereunder, including any rights to acquire any Equity Interests of the Company, the Surviving Company or any Subsidiaries thereof, other than as set forth herein (including pursuant to Section 3.1(c)(iii) and Section 3.2(d)) or by applicable Law.

Section 3.4           Exchange Procedures for Blocker Owners, Company Unitholders and Company Optionholders.

(a)            Payment Procedures. Prior to the Closing, the Company shall mail or otherwise deliver, or the Buyer shall cause the Transfer Agent to mail or otherwise deliver, to (i) each Blocker Owner entitled to receive such Blocker Owner’s Total Individual Blocker Merger Consideration pursuant to ‎Section 3.1(a)(ii), a letter of transmittal in the form as may be reasonably agreed to among the Company, the Buyer and the Transfer Agent prior to the Closing (the “Blocker Letter of Transmittal”), together with any notice required pursuant to Section 262 of the DGCL, if applicable, (ii) each Company Unitholder entitled to receive such Company Unitholder’s Total Individual Company Unitholder Merger Consideration pursuant to ‎Section 3.1(c)(ii), a letter of transmittal substantially in the form reasonably agreed to among the Company, the Buyer and the Transfer Agent prior to the Closing (the “Company Unitholder Letter of Transmittal”), and to each Company Optionholder entitled to receive such Company Optionholder’s Total Individual Company Optionholder Merger Consideration pursuant to ‎Section 3.1(c)(iii)(A), a letter of transmittal reasonably agreed to by the Company, the Buyer and the Transfer Agent prior to the Closing (the “Company Optionholder Letter of Transmittal”). In the event that at least three (3) Business Days prior to the Closing Date, (A) a Blocker Owner, (B) a Company Unitholder or (C) a Company Optionholder does not deliver to the Transfer Agent a duly executed and completed Blocker Letter of Transmittal, Company Unitholder Letter of Transmittal or Company Optionholder Letter of Transmittal, as applicable, then such failure shall not alter, limit or delay the Closing; provided, that such Blocker Owner, Company Unitholder or Company Optionholder, as the case may be, shall not be entitled to receive its Blocker Merger Consideration, Total Individual Company Unitholder Merger Consideration or Total Individual Company Optionholder Merger Consideration, as applicable, until such Person delivers a duly executed and completed Blocker Letter of Transmittal, Company Unitholder Letter of Transmittal or Company Optionholder Letter of Transmittal, as applicable, to the Transfer Agent or the Company, as applicable. Upon delivery of such duly executed Blocker Letter of Transmittal, Company Unitholder Letter of Transmittal or Company Optionholder Letter of Transmittal, respectively, of such Blocker Owner, Company Unitholder or Company Optionholder to the Transfer Agent or the Company, as applicable, such Blocker Owner, Company Unitholder or Company Optionholder shall be entitled to receive, subject to the terms and conditions hereof, (x) the Blocker Merger Consideration in respect of its Equity Interest which shall be referenced in such Blocker Letter of Transmittal, (y) the Total Individual Company Unitholder Merger Consideration in respect of his, her or its Company Units which shall be referenced in such Company Unitholder Letter of Transmittal or (z) the Total Individual Company Optionholder Merger Consideration in respect of his, her or its Company Options which shall be referenced in such Company Optionholder Letter of Transmittal. Until surrendered as contemplated by this ‎Section 3.4(a), each Blocker Equity Interest, Company Unit and Company Option shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Blocker Owner Consideration, Total Individual Company Unitholder Consideration or Total Individual Company Optionholder Merger Consideration, respectively, to which such Blocker Owner, Company Unitholder or Company Optionholder is entitled pursuant to this ‎Article III.

(b)            Company Equityholder Materials. Prior to the Closing, the Company shall request in writing that (i) the Insight Member, each Insight Blocker Owner, the Elliott Blocker Owners and the PDI Blocker Owners deliver, or cause to be delivered, not less than five (5) Business Days prior to the Closing Date, duly executed counterparts to the Investor Rights Agreement, (ii) the individuals set forth on Schedule 1.2 deliver, or cause to be delivered, not less than five (5) Business Days prior to the Closing Date, duly executed counterparts to the Lock-Up Agreement, and (iii) each Company Unitholder deliver, or cause to be delivered, not less than five (5) Business Days prior to the Closing Date, duly executed counterparts to the Company A&R LLCA and the Tax Receivable Agreement, in each case of clauses (i), (ii) and (iii), executed by such Persons (such materials described in clauses (i), (ii) and (iii), collectively, the “Equityholder Materials”). The Company and the Blockers shall use their commercially reasonable efforts to cause such Equityholder Materials to be timely delivered to the Buyer in accordance with the immediately preceding sentence.

(c)            Fractional Shares. Notwithstanding anything to the contrary contained herein, no evidence of book-entry shares representing any fractional share of Buyer Class A Common Stock, Buyer Class B Common Stock, Buyer Class V Voting Stock, Common Units or Restricted Common Units shall be issued in exchange for Blocker Equity Interests, Company Units or Company Units underlying Company Options. In lieu of the issuance of any such fractional share, the Buyer shall pay to each former holder of Blocker Equity Interests, Company Units or Company Options who otherwise would be entitled to receive such fractional share an amount in cash (rounded up to the nearest cent) determined by multiplying (i) the Reference Price by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Buyer Class A Common Stock, Buyer Class B Common Stock, Buyer Class V Voting Stock, Common Units or Restricted Units which such holder would otherwise be entitled to receive pursuant to this ‎Article III.

Section 3.5            Post-Closing Adjustment to Merger Consideration.

(a)            Within ninety (90) days after the Closing Date, the Buyer shall prepare and deliver to the Equityholder Representative a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s good faith calculation of (i) the amount of Cash and Cash Equivalents (the “Closing Cash”), (ii) the amount of Closing Company Indebtedness (the “Final Closing Company Indebtedness”), (iii) the Net Working Capital Adjustment (the “Closing Net Working Capital”), (iv) the Transaction Expenses (the “Closing Transaction Expenses”), (v) the Aggregate Permitted Acquisition Price Amount, (vi) the Merger Consideration, and (vii) the amount of Closing Blocker Indebtedness of each Blocker (the “Final Closing Blocker Indebtedness”), in each case prepared in accordance with the definitions thereof and the Accounting Principles and including reasonably detailed calculations of the components thereof to enable a review thereof by the Equityholder Representative.

(b)            The Equityholder Representative shall have thirty (30) days after its receipt of the Closing Statement (the “Review Period”) within which to review the Closing Statement and to deliver to the Buyer written notice of the Equityholder Representative’s disagreement with any item contained in the Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement and dollar amount of such dispute (to the extent possible) and attaching reasonable supporting details to enable a review thereof by the Buyer (a “Dispute Notice”). The Closing Statement shall become final, conclusive and binding on the Parties following the Review Period unless the Equityholder Representative delivers to the Buyer a Dispute Notice within the Review Period. If the Equityholder Representative timely delivers a Dispute Notice, any amounts on the Closing Statement not objected to by Equityholder Representative in the Dispute Notice (or by the Buyer as a result of the items disputed by the Equityholder Representative in such Dispute Notice) shall be final, conclusive and binding on the Parties, and the Buyer and the Equityholder Representative shall, within thirty (30) days following the Buyer’s receipt of such Dispute Notice (the “Resolution Period”), use reasonable best efforts to attempt to resolve in writing their differences with respect to the items set forth in the Dispute Notice, and any such resolution shall be final, conclusive and binding on the Parties. If, at the conclusion of the Resolution Period, any amounts remain in dispute, then each of the Buyer and the Equityholder Representative shall promptly, and in any event, within ten (10) days, execute any reasonable engagement letter requested by the Valuation Firm and submit all items remaining in dispute to a nationally recognized, independent accounting firm mutually acceptable to the Buyer and the Equityholder Representative (the “Valuation Firm”) for resolution, acting as an accounting expert (and not as an arbitrator) and in accordance with the standards set forth in this ‎Section 3.5(b), by delivering, within ten (10) days after engagement of the Valuation Firm, their written position with respect to such items remaining in dispute. The Valuation Firm’s determination shall be based on (x) the definitions of Cash and Cash Equivalents, Indebtedness, Net Working Capital, Aggregate Permitted Acquisition Price Amount and Transaction Expenses contained herein and the provisions of this Agreement, (y) one (1) written presentation submitted by each of the Equityholder Representative and the Buyer (which the Valuation Firm hall be instructed to distribute to the Equityholder Representative and the Buyer upon receipt of both presentations) and (z) on one (1) written response by each of the Equityholder Representative and the Buyer (which the Valuation Firm shall be instructed to distribute to the Equityholder Representative and the Buyer upon receipt of both such responses) (i.e., not on the basis of an independent review). The Buyer and the Equityholder Representative shall each cooperate fully with the Valuation Firm so as to enable the Valuation Firm to make such determination as quickly and as accurately as practicable; provided that no Party (or any of its Affiliates, advisors or representatives) shall engage in any ex parte communications with the Valuation Firm. The Valuation Firm shall determine, based solely on the presentations and responses submitted by the Equityholder Representative and the Buyer, and not by independent review, only those issues set forth in the Dispute Notice (and those raised by the Buyer in response thereto) that remain in dispute and shall determine a value for any such disputed item which is equal to or between the final values proposed by the Buyer and the Equityholder Representative in their respective submissions. The Parties shall request that the Valuation Firm make a decision with respect to all remaining disputed items in the Dispute Notice within thirty (30) days after the submissions of the Parties, as provided above, and in any event as promptly as practicable. The final determination with respect to all disputed items in the Dispute Notice submitted to the Valuation Firm shall be set forth in a written statement by the Valuation Firm delivered to the Equityholder Representative and the Buyer and shall be final, conclusive and binding on the Parties, absent fraud or manifest error. Judgment may be entered upon the determination of the Valuation Firm in any court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Valuation Firm incurred pursuant to this ‎Section 3.5(b) shall be borne by Equityholder Representative, on the one hand, and the Buyer, on the other hand, in inverse proportion to the final allocation made by such Valuation Firm of any disputed items in the Dispute Notice submitted to the Valuation Firm such that the prevailing Party pays the lesser proportion of such fees, costs and expenses. For example, if the Equityholder Representative claims that the appropriate adjustments are one thousand dollars ($1,000) greater than the amount determined by the Buyer and if the Valuation Firm ultimately resolves the dispute by awarding to the Equityholder Representative seven hundred dollars ($700) of the one thousand dollars ($1,000) disputed, then the fees, costs and expenses of the Valuation Firm will be allocated seventy percent (70%) (i.e., 700 ÷ 1,000) to the Buyer and thirty percent (30%) (i.e., 300 ÷ 1,000) to the Equityholder Representative.

(c)            From and after the Equityholder Representative’s receipt of the Closing Statement until the Closing Cash, Final Closing Company Indebtedness, Final Closing Blocker Indebtedness, Closing Net Working Capital and Closing Transaction Expenses are finally determined pursuant to this ‎Section 3.5, the Equityholder Representative, its Affiliates and their auditors, accountants and other representatives shall be, upon reasonable advance notice to the Buyer, permitted reasonable access during normal business hours to the Company, its Subsidiaries (including E2open) and the Buyer and their respective auditors, accountants, personnel, books and records and any other documents or information reasonably requested by such Person relating to any item properly raised in a Dispute Notice (including the information, data and work papers used by the Buyer and/or the Company’s or its subsidiaries’ auditors or accountants to prepare and calculate the Closing Cash, Final Closing Company Indebtedness, Final Closing Blocker Indebtedness, Closing Net Working Capital and Closing Transaction Expenses, but excluding information the disclosure of which, Buyer has been advised by legal counsel in good faith, could reasonably be expected to jeopardize any applicable privilege (including the attorney-client privilege) and, subject to such Person and their auditors, accountants and other representatives entering into any such access letters reasonably required).

(d)            Adjustment to Merger Consideration.

(i)            If the Merger Consideration, as finally determined pursuant to ‎Section 3.5(b), exceeds the Estimated Merger Consideration then, within three (3) Business Days after the date on which the Merger Consideration is finally determined:

(A)            The Buyer shall issue to each Blocker Owner a number of shares of Buyer Class A Common Stock, plus cash in lieu of any fractional share as provided in ‎Section 3.4(c), such that the aggregate number of shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to this Agreement is equal to the number of shares of Buyer Class A Common Stock such Blocker Owner would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Blocker Merger Consideration;

(B)            the Company shall issue to each Company Class A Unitholder a number of Common Units, plus cash in lieu of any fractional Common Unit as provided in ‎Section 3.4(c), such that the aggregate number of Common Units issued to such Company Class A Unitholder pursuant to this Agreement is equal to the number of Common Units such Company Class A Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class A Unitholder Merger Consideration;

(C)            the Company shall issue to each Company Class B Unitholder a number of Common Units, plus cash in lieu of any fractional Common Unit as provided in ‎Section 3.4(c), such that the aggregate number of Common Units issued to such Company Class B Unitholder pursuant to this Agreement is equal to the number of Common Units such Company Class B Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class B Unitholder Merger Consideration;

(D)            the Buyer shall deliver to (1) each Company Class A Unitholder a number of shares of Buyer Class V Voting Stock equal to the number of Common Units issued to such Company Class A Unitholder pursuant to clause (B) of this ‎Section 3.5(d)(i), and (2) each Company Class B Unitholder a number of shares of Buyer Class V Voting Stock equal to the number of Common Units issued to such Company Class B Unitholder pursuant to clause (C) of this Section 3.5(d)(i);

(E)            the Company shall issue to each Company Optionholder who holds Vested Company Options, a number of shares of Buyer Class A Common Stock, plus cash in lieu of any fractional share as provided in ‎Section 3.4(c), such that the aggregate number of shares of Class A Common Stock issued to such Company Optionholder pursuant to Section 3.1(c)(iii)(A) of this Agreement is equal to the number of shares of Buyer Class A Common Stock such Company Optionholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Optionholder Merger Consideration (and for the avoidance of doubt, without giving effect to the redemption pursuant to Section 3.1(c)(iv);

(F)            The Buyer shall (1) provide that the aggregate number of shares of Buyer Class A Common Stock subject to the Restricted Share Units will be increased such that the aggregate number of shares of Buyer Class A Common Stock subject to the Restricted Share Units issued to a Company Optionholder pursuant to this Agreement is equal to the number of shares of Buyer Class A Common Stock (rounded to the nearest whole share) that would have been subject to the Restricted Share Units issued to a Company Optionholder on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Cancelled Option Value, and (2) and contribute to the Company cash in lieu of any fractional share as provided in ‎Section 3.4(c), for further distribution to the Company Optionholders; and

(G)            the Company shall issue to the Buyer a number of Common Units equal to the number of shares of Buyer Class A Common Stock issued pursuant to clauses (A) and (E) of this ‎Section 3.5(d).

(ii)            If the Estimated Merger Consideration exceeds the Merger Consideration, as finally determined pursuant to ‎Section 3.5(b), then, within three (3) Business Days after the date on which the Merger Consideration is finally determined:

(A)            The Buyer shall cancel a number of the shares of Buyer Class A Common Stock issued to each Blocker Owner on the Closing Date such that the aggregate number of shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to this Agreement and not so cancelled is equal to the number of shares of Buyer Class A Common Stock such Blocker Owner would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Blocker Merger Consideration;

(B)            the Company shall cancel a number of the Common Units issued to each Company Class A Unitholder on the Closing Date such that the aggregate number of Common Units issued to such Company Class A Unitholder pursuant to this Agreement and not so cancelled is equal to the number of Common Units such Company Class A Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class A Unitholder Merger Consideration;

(C)            the Company shall cancel a number of the Common Units issued to each Company Class B Unitholder on the Closing Date such that the aggregate number of Common Units issued to such Company Class B Unitholder pursuant to this Agreement and not so cancelled is equal to the number of Common Units such Company Class B Unitholder would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Class B Unitholder Merger Consideration;

(D)            the Buyer shall cancel a number of the shares of Buyer Class V Voting Stock issued to (1) each Company Class A Unitholder on the Closing Date equal to the number of Common Units cancelled pursuant to clause (B) of this ‎Section 3.5(d)(ii) and (2) each Company Class B Unitholder on the Closing Date equal to the number of Common Units cancelled pursuant to clause (C) of this Section 3.5(d)(ii);

(E)            the Company shall cancel a number of shares of Buyer Class A Common Stock issued on the Closing Date to each Company Optionholder who holds Vested Company Options such that the aggregate number of shares of Buyer Class A Common Stock issued to such Company Optionholder pursuant to this Agreement and not so cancelled is equal to the number of shares of Buyer Class A Common Stock such Company Optionholder would have received on the Closing Date pursuant to Section 3.1(c)(iii)(A) of this Agreement if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Company Optionholder Merger Consideration;

(F)            the Buyer shall cancel a number of shares of Buyer Class A Common Stock subject to the Restricted Share Units issued to each Company Optionholder on the Closing Date such that the aggregate number of shares of Buyer Class A Common Stock subject to the Restricted Share Units issued to each Company Optionholder on the Closing Date pursuant to this Agreement and not so cancelled is equal to the number of shares of Buyer Class A Common Stock (rounded to the nearest whole share) that would have been subject to the Restricted Share Units issued to a Company Optionholder on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Cancelled Option Value; and

(G)            the Company shall cancel a number of Common Units held by the Buyer equal to the number of shares of Buyer Class A Common Stock canceled pursuant to clause (A) and clause (E) of this ‎Section 3.5(d)(ii).

(iii)            With respect to each Blocker Owner:

(A)            if the Estimated Closing Blocker Indebtedness of such Blocker Owner’s Blocker, as finally determined pursuant to ‎Section 3.5(b), exceeds the Final Closing Blocker Indebtedness of such Blocker Owner’s Blocker, then, within three (3) Business Days after the date on which the Final Closing Blocker Indebtedness is finally determined pursuant to Section 3.5(b), the Buyer shall issue to such Blocker Owner a number of shares of Buyer Class A Common Stock, plus cash in lieu of any fractional share as provided in ‎Section 3.4(c), such that the aggregate number of shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to this Agreement is equal to the number of shares of Buyer Class A Common Stock such Blocker Owner would have received on the Closing Date if the Final Closing Blocker Indebtedness, rather than the Estimated Closing Blocker Indebtedness, were used for purposes of determining the Closing Blocker Merger Consideration; or

(B)            if the Final Closing Blocker Indebtedness of such Blocker Owner’s Blocker, as finally determined pursuant to ‎Section 3.5(b), exceeds the Estimated Closing Blocker Indebtedness of such Blocker Owner’s Blocker, then, within three (3) Business Days after the date on which the Final Closing Blocker Indebtedness is finally determined pursuant to Section 3.5(b), (1) the Buyer shall cancel a number of the shares of Buyer Class A Common Stock issued to each Blocker Owner on the Closing Date such that the aggregate number of shares of Buyer Class A Common Stock issued to such Blocker Owner pursuant to this Agreement and not so cancelled is equal to the number of shares of Buyer Class A Common Stock such Blocker Owner would have received on the Closing Date if the finally determined Merger Consideration, rather than the Estimated Merger Consideration, were used for purposes of determining the Closing Blocker Merger Consideration, and (2) the Company shall cancel a number of Common Units held by the Buyer equal to the aggregate number of shares of Buyer Class A Common Stock cancelled with respect to all Blocker Owners pursuant to this Section 3.5(d)(iii)(B).

(e)            Any such payments or surrender, as applicable, made pursuant to this ‎Section 3.5 shall be deemed an adjustment to the Merger Consideration for all purposes, including for income Tax purposes, to the extent permitted by applicable Law.

(f)             For the avoidance of doubt, the adjustments under Section 3.5(d)(i) and (ii) shall be calculated in a manner such that the aggregate amount of Equity Interests (not taking into account shares of Buyer Class V Common Stock) issued or cancelled, as relevant, shall be equal to (i) the difference between (x) the Estimated Merger Consideration and (y) the Merger Consideration as finally determined in accordance with Section 3.5(b) divided by (ii) the Reference Price.

Section 3.6            Company Closing Deliveries. At the Closing, the Company shall deliver, or shall cause to be delivered, the following:

(a)             to each Company Unitholder, (i) the Common Units issuable to such Company Unitholder in respect of the Company Units held by such Company Unitholder pursuant to the Company Merger as provided in ‎Section 3.1(c)(ii)(A), which Common Units shall not be certificated but the issuance thereof shall be recorded in, or in the manner specified in, the Company A&R LLCA, and (ii) any cash in lieu of any fractional Common Unit and fractional share of Buyer Class V Voting Stock payable to such Company Unitholder;

(b)             to the Buyer, the Pro Forma Buyer Common Units (for the avoidance of doubt including Contribution Common Units), the Pro Forma Buyer Series 1 RCUs and the Pro Forma Buyer Series 2 RCUs issuable in respect of the Company Units held by the Buyer pursuant to the Company Merger as provided in ‎Section 3.1(c)(ii)(C), which Pro Forma Buyer Common Units, Pro Forma Buyer Series 1 RCUs and Pro Forma Buyer Series 2 RCUs shall not be certificated but the issuance thereof shall be recorded in, or in the manner specified in, the Company A&R LLCA;

(c)             to the Buyer, duly executed counterparts of the Investor Rights Agreement, executed by the Insight Member;

(d)             to the Buyer, (i) duly executed counterparts of the Company A&R LLCA, executed by the Company, the Insight Member, and each other Company Unitholder that has provided the Equityholder Materials to the Buyer prior to Closing in accordance with ‎Section 3.4(b), and (iii) the Company A&R LLCA;

(e)             to the Buyer, duly executed counterparts of the Lock-Up Agreement, executed by each individual set forth on Schedule 1.2;

(f)             to the Buyer, duly executed counterparts of the Tax Receivable Agreement, executed by the Insight Member, and by each other Company Unitholder that has provided the Equityholder Materials to the Buyer prior to Closing in accordance with ‎Section 3.4(b);

(g)             to the Buyer, a duly executed copy of the Company Certificate of Merger;

(h)             to the Buyer, (i) a properly completed IRS Form W-9 or applicable IRS Form W-8, duly executed by each Company Unitholder and (ii) a certificate, duly executed and acknowledged by the Company, certifying that fifty percent (50%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests, or that ninety percent (90%) or more of the value of the gross assets of the Company does not consist of U.S. real property interests plus cash or cash equivalents;

(i)              to the Buyer evidence of the termination of the Affiliated Transactions pursuant to ‎Section 8.16;

(j)              to the Buyer, a duly executed Company Bring-Down Certificate from an authorized Person of each of the Company;

(k)             to the Buyer, the SVB Payoff Letter and, subject to ‎Section 3.2(e)(i)(D), either (A) the Golub Payoff Letter and evidence that the Debt Financing has been consummated or will be consummated substantially contemporaneously with the Closing on the terms and conditions set forth in the Commitment Letter (or that an Alternative Financing has been consummated or will be consummated substantially contemporaneously with the Closing on the terms and conditions set forth in the New Commitment Letter), or (B) the Lender Consent (it being understood and agreed that in no event shall the Company be required to deliver both the Lender Consent and evidence of consummation of the Debt Financing);

(l)              to the Buyer, evidence of the termination of the Option Plan; and

(m)            to the Buyer, duly executed counterparts to that certain letter agreement consistent with the terms set forth on Schedule 3.6(m), executed by the Insight Member (the “Insight Letter Agreement”).

Section 3.7            Blocker Closing Deliveries. At the Closing, each Blocker shall deliver, or shall cause to be delivered, the following:

(a)            to the Buyer, duly executed counterparts of the Investor Rights Agreement, executed by each of the Insight Blocker Owners and the Elliott Blocker Owners;

(b)            to the Buyer, (i) a properly completed IRS Form W-9 or applicable IRS Form W-8, duly executed by each Blocker and (ii) a certificate, duly executed and acknowledged by each Blocker, in the form and substance required by the Treasury Regulations promulgated under Section 897 and Section 1445 of the Code, certifying that such Blocker is not, and has not been within the applicable period set forth in Section 897(c)(1)(A)(ii) of the Code, a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code;

(c)            to the Buyer, a duly executed Blocker Bring-Down Certificate from an authorized Person of each Blocker;

(d)            to the Buyer, evidence of the termination of the Blocker Affiliated Transactions pursuant to ‎Section 8.16; and

(e)            to the Buyer, all certificates, if any, representing Blocker Equity Interests of such Blocker.

(f)            to the Buyer, duly executed counterparts to that certain letter agreement consistent with the terms set forth on Schedule 3.7(f), executed by each Insight Blocker Owner (the “Insight Blocker Letter Agreement”).

(g)            to the Buyer, evidence of the Elliott Note Transfer;

Section 3.8            Buyer Deliveries. At Closing, the Buyer shall deliver, or shall cause to be delivered, the following:

(a)            to each Blocker Owner, (i) the shares of Buyer Class A Common Stock and Buyer Class B Common Stock issuable to such Blocker Owner in respect of the Blocker Equity Interests held by such Blocker Owner pursuant to such Blocker’s Blocker Merger, which shares shall be delivered in book-entry form and not certificated, (ii) such Blocker Owner’s Pro Rata Percentage of the Adjusted Aggregate Cash Amount, and (iii) any cash in lieu of any fractional share of Buyer Class A Common Stock and Buyer Class B Common Stock payable to such Blocker Owner pursuant to ‎Section 3.1(a)(ii);

(b)            to each Company Optionholder, (i) the shares of Buyer Class A Common Stock, Restricted Share Units and Buyer Class B Common Stock, as applicable, issuable to such Company Optionholder in respect of the Company Options held by such Company Optionholder pursuant to the Company Merger, which shares shall be delivered in book-entry form and not certificated, (ii) such with respect to each Company Optionholder who holds a Vested Company Option, the Company Optionholder’s Pro Rata Percentage of the Adjusted Aggregate Cash Amount, and (iii) any cash in lieu of any fractional share of Buyer Class A Common Stock and Buyer Class B Common Stock payable to such Company Optionholder pursuant to ‎Section 3.1(c)(iii);

(c)            to each Company Unitholder, (i) the shares of Buyer Class V Voting Stock, issuable to such Company Unitholder in respect of the Company Units held by such Company Unitholder pursuant to the Company Merger as provided in ‎Section 3.1(c)(ii), which shares shall be delivered in book-entry form and not certificated;

(d)            to the Company, a duly executed counterpart to each of (i) the Company A&R LLCA, (ii) the Tax Receivable Agreement, (iii) the Investor Rights Agreement, and (iv) the Lock-Up Agreement;

(e)            to the Company, a duly executed Buyer Bring-Down Certificate from an authorized Person of the Buyer;

(f)            to the Company and each Blocker, a duly executed copy of each Blocker Certificate of Merger and the Buyer Certificate of Merger; and

(g)            to the Equityholder Representative, a duly executed copy of the Insight Letter Agreement and the Insight Blocker Letter Agreement.

Section 3.9            Withholding and Wage Payments.

(a)            The Buyer and the Company shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any other provision of applicable Laws; provided that, other than with respect to withholding (i) with respect to any payments in the nature of compensation, (ii) attributable to the failure of any Person to provide the documents described in Sections 3.6(h) or 3.7(b) or required under any Letter of Transmittal, or (iii) required under Section 1446(f) of the Code, the Buyer will (or will cause the Transfer Agent to) prior to any deduction or withholding use commercially reasonable efforts to (A) notify the Equityholder Representative of any anticipated withholding, (B) consult with the Equityholder Representative in good faith to determine whether such deduction and withholding is required under applicable Law and (C) reasonably cooperate with the Equityholder Representative to minimize the amount of any such applicable withholding. To the extent that such withheld amounts are paid over to or deposited with the applicable Governmental Entity, such withheld amounts shall be treated for all purposes hereof as having been paid to the Person in respect of which such deduction and withholding were made.

(b)            Notwithstanding the foregoing, to the extent that any amount payable pursuant to this Agreement is being paid to any employee or similar Person of any Group Company that constitutes “wages” or other relevant compensatory amount, such amount shall be deposited in the payroll account of the applicable Group Company and the amounts due to such employee or similar Person (net of withholding) shall be paid to such Person pursuant to the next practicable scheduled payroll of the applicable Group Company.

Article IV
REPRESENTATIONS AND WARRANTIES REGARDING THE GROUP COMPANIES

As an inducement to the Buyer Parties to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the applicable section of the Group Company Disclosure Schedules, the Company represents and warrants to the Buyer Parties as follows:

Section 4.1            Organization; Authority; Enforceability.

(a)            The Company is a limited liability company formed under the Laws of the State of Delaware. Each other Group Company is a corporation, limited liability company or other business entity, as the case may be, and each Group Company is duly organized, validly existing and in good standing (or the equivalent thereof, if applicable) under the Laws of its respective jurisdiction of formation or organization (as applicable), except where the failure to be in good standing (or the equivalent thereof, if applicable) would not reasonably be expected to have a Material Adverse Effect.

(b)            Each Group Company has all the requisite corporate, limited liability company or other applicable power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

(c)            Each Group Company is duly qualified, licensed or registered to do business under the Laws of each jurisdictions in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.

(d)            The Company is not in violation of any of its Governing Documents and no other Group Company is in material violation of any of its Governing Documents. None of the Group Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization (other than internal reorganizations conducted in the Ordinary Course of Business) or similar proceeding.

(e)            The Company has the requisite limited liability company power and authority to execute and deliver this Agreement and each Group Company has the requisite corporate, limited liability company or other business entity power and authority, as applicable, to execute and deliver the Ancillary Agreements to which it is or will be a party and to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby, subject in the case of the consummation of the Company Merger, to receiving the Company Written Consent. The execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate, limited liability company or other business entity actions, as applicable. This Agreement has been (and each of the Ancillary Agreements to which each Group Company will be a party will be) duly executed and delivered by such Group Company and constitutes a valid, legal and binding agreement of each Group Company, enforceable against such Group Company in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.

Section 4.2            Non-contravention. Except as set forth on Schedule 4.2, and subject to the receipt of the Company Written Consent, the filing of the Company Certificate of Merger and the filings pursuant to ‎Section 8.8, and assuming the truth and accuracy of the Buyer Parties’ representations and warranties in Section 6.2 and in Section 6.11, neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or by any Ancillary Agreement by a Group Company will (a) conflict with or result in any breach of any material provision of the Governing Documents of any Group Company; (b) require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration of material rights) under, any of the terms, conditions or provisions of any Material Contract or Material Lease or material Company Benefit Plan (in each case, whether with or without the giving of notice, the passage of time or both); (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of any Group Company; or (e) except for violations which would not prevent or materially delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Group Company, excluding from the foregoing clauses (b), (c), (d) and (e), such requirements, violations or defaults which would not reasonably be expected to have a Material Adverse Effect.

Section 4.3            Capitalization.

(a)            Schedule ‎4.3(a) sets forth the Equity Interests of the Company (including the number and class or series (as applicable) of Equity Interests) (the “Company Equity Interests”) and the record and beneficial ownership (including the percentage interests held thereby) thereof. The Equity Interests set forth on Schedule ‎4.3(a) comprise all of the authorized capital stock, limited liability company interests or other Equity Interests of the Company that are issued and outstanding, in each case, as of the Effective Date and immediately prior to giving effect to the transactions occurring on the Closing Date contemplated hereby and by the Ancillary Agreements.

(b)            Except as set forth on Schedule ‎4.3(b) or for this Agreement or the Company LLCA:

(i)            there are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights or other similar rights to which the Company is a party or which are binding upon the Company providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Interests (other than this Agreement);

(ii)            the Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests, either of itself or of another Person;

(iii)            the Company is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Interests;

(iv)            there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of the Company Equity Interests; and

(v)            the Company has not violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which the Company is a party in connection with the offer, sale, issuance or allotment of any of the Company Equity Interests.

(c)            All of the Company Equity Interests have been duly authorized and validly issued, and were not issued in violation of any preemptive rights, call options, rights of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than Securities Liens and other than as set forth in the Governing Documents of the Company) or applicable Law.

(d)            Schedule ‎4.3(d) sets forth, as of the Effective Date, (i) a list of all outstanding Company Options, (ii) the name of each holder of Company Options, (iii) the exercise price of each Company Option, (iv) the total number of Class A Units or Class A-1 Units subject to each Company Option, and (v) the vesting schedule of each Company Option. Each Company Option has been offered, issued and delivered by the Company in compliance in all material respects with the terms and conditions of the Option Plan and applicable Law, and each Company Option’s per Class A Unit or per Class A-1 Unit, as applicable, exercise price is equal to or greater than the fair market value of the underlying Unit on the date of grant of such Company Options within the meaning of Section 409A of the Code and the Treasury Regulations and official guidance promulgated thereunder.

(e)            Schedule ‎4.3(e) sets forth, as of the Effective Date, (i) a list of all outstanding Profits Interest Units, (ii) the name of each holder of Profits Interest Units, (iii) the total number of Class B Units subject to each Profits Interest Unit, (iv) the vesting schedule, and (v) the applicable participation threshold or hurdle attributable to each Profits Interest Unit. Each Profits Interest Unit constitutes a “profits interest” as that term is used in Revenue Procedures 93-27 and 2001-43, and an election under Section 83(b) of the Code has been made with respect to each award of Profits Interest Units.

(f)            Schedule 4.3(f)(i) sets forth a true and complete list of the Company Subsidiaries, listing for each Company Subsidiary its name, the jurisdiction of its formation or organization (as applicable) and its parent company (if wholly-owned) or its owners (if not-wholly owned). Except as set forth on Schedule ‎3.3(f)(ii), all of the outstanding capital stock or other Equity Interests, as applicable, of each Company Subsidiary are duly authorized, validly issued, free of preemptive rights, restrictions on transfer (other than restrictions under applicable federal, state and other securities Laws), and, if applicable, fully paid and non-assessable, and are owned by the Company, whether directly or indirectly, free and clear of all Liens (other than Permitted Liens). There are no options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to any Company Subsidiary and no rights, exchangeable securities, securities, “phantom” rights, appreciation rights, performance units, commitments or other agreements obligating the Company or any Company Subsidiary to issue or sell, or cause to be issued or sold, any equity securities of, or any other interest in, any Company Subsidiary, including any security convertible or exercisable into equity securities of any Company Subsidiary. There are no Contracts to which any Company Subsidiary is a party which require such Company Subsidiary to repurchase, redeem or otherwise acquire any Equity Interests or securities convertible into or exchangeable for such equity securities or to make any investment in any other Person.

Section 4.4            Financial Statements; No Undisclosed Liabilities.

(a)            Attached as Schedule 4.4 are true and complete copies of the following financial statements (such financial statements, the “Financial Statements”):

(i)            the audited consolidated balance sheet of E2open and its Subsidiaries as of February 29, 2020, February 28, 2019 and February 28, 2018 and the related audited consolidated statements of comprehensive loss, cash flows and members’ equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of E2open’s independent auditors (the “Audited Financial Statements”); and

(ii)            the unaudited consolidated balance sheet of E2open and its Subsidiaries as of August 31, 2020 (the “Unaudited Balance Sheet”) and the related unaudited consolidated statements of comprehensive loss, cash flows for the six (6) month period then ended (collectively, together with the Unaudited Balance Sheet, the “Unaudited Financial Statements”).

(b)            Except as set forth on Schedule 4.4(b), the Financial Statements (i) have been prepared from the books and records of E2open and its Subsidiaries; (ii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as may be indicated in the notes thereto and subject, in the case of the Unaudited Financial Statements, to the absence of footnotes and year-end adjustments; and (iii) fairly present, in all material respects, the consolidated financial position of E2open and its Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject, in the case of the Unaudited Financial Statements, to the absence of footnotes and year-end adjustments, none of which would be expected to be material individually or in the aggregate).

(c)            The books of account and other financial records of each Group Company have been kept accurately in all material respects in the Ordinary Course of Business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of the Group Companies have been properly recorded therein in all material respects. Each Group Company has devised and maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) the transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) the amount recorded for assets on the books and records of each Group Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any difference (collectively, “Internal Controls”).

(d)            The Company has not identified and has not received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of Internal Controls utilized by the Group Companies; (ii) any fraud that involves the Group Companies’ management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by the Group Companies; or (iii) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to materially and adversely affect the Group Companies’ ability to record, process, summarize and report financial information.

(e)            Except as set forth on Schedule 4.4(e), (i) the Company (A) has not conducted and does not conduct any material business or engage in any material activities other than those directly related to holding 100% of the limited liability company interests of E2open Intermediate, LLC, (B) has no assets other than 100% of the limited liability company interests of E2open Intermediate, LLC, (C) has no Liabilities and (ii) E2open Intermediate (A) was formed solely for the purpose of holding 100% of the limited liability company interests of E2open, (B) has not conducted any material business or engaged in any material activities other than those directly related to holding 100% of the limited liability company interests of E2open, (C) has no assets other than 100% of the limited liability company interests of E2open and has never engaged in any other activities other than incident to its ownership of E2open and (D) has no Liabilities.

(f)            Except as set forth on Schedule 4.4(f), no Group Company has any Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, except (i) Liabilities specifically reflected and adequately reserved against in the Audited Financial Statements or specifically identified in the notes thereto; (ii) Liabilities which have arisen after the Latest Balance Sheet Date in the Ordinary Course of Business (none of which results from, arises out of or was caused by any breach of Contract, infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements or the performance by the Company of its obligations hereunder or thereunder; or (iv) for fees, costs and expenses for advisors and Affiliates of the Group Companies, including with respect to legal, accounting or other advisors incurred by the Group Companies in connection with the transaction contemplated by this Agreement.

(g)            No Group Company maintains any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities Exchange Act.

Section 4.5            No Material Adverse Effect. Since February 29, 2020, through the Effective Date, there has been no Material Adverse Effect.

Section 4.6            Absence of Certain Developments. Except as set forth on Schedule ‎4.6, since the Latest Balance Sheet Date, (a) each Group Company has conducted its business in the Ordinary Course of Business in all material respects and (b) no Group Company has taken or omitted to be taken any action that would, if taken or omitted to be taken after the Effective Date, require the Buyer’s consent in accordance with ‎Section 7.1 (other than with respect to Section 7.1(b)(xvi) through (xix)).

Section 4.7            Real Property. Schedule 4.7 sets forth a true, correct and complete list of all Leases with annual rental payments of over $1,000,000 (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) for such Leased Real Property (such Leases, the “Material Leases”). Except as set forth on Schedule 4.7, with respect to each of the Material Leases: (i) no Group Company has subleased, licensed or otherwise granted any right to use or occupy the Leased Real Property or any portion thereof to a third party; (ii) such Material Lease is legal, valid, binding, enforceable against the applicable Group Company and in full force and effect; (iii) the Group Company’s possession and quiet enjoyment of the Leased Real Property under such Material Lease has not been disturbed and, to the Knowledge of the Company there are no disputes with respect to such Material Lease; (iv) no Group Company is currently in default under, nor has any event occurred or, to the Knowledge of the Group Company, does any circumstance exist that, with notice of lapse of time or both would constitute a default by the Group Company under any Material Lease; (v) to the Knowledge of the Group Company, no default, event or circumstance exists that, with notice or lapse of time, or both, would constitute a default by any counterparty to any such Material Lease; and (vi) except as set forth on Schedule 4.7, no Group Company has collaterally assigned or granted any other security interest in such Material Lease or any interest therein. The Group Company has made available to the Buyer a true, correct and complete copy of all Material Leases. No Group Company owns any real property.

Section 4.8            Tax Matters.

(a)            All income and other material Tax Returns required to be filed by or with respect to each Group Company has been timely filed pursuant to applicable Laws. All income and other material Tax Returns filed by or with respect to each of the Group Companies are true, complete and correct in all material respects and have been prepared in material compliance with all applicable Laws. Each Group Company has timely paid all material amounts of Taxes due and payable by it (whether or not shown as due and payable on any Tax Return). Each Group Company has timely and properly withheld and paid to the applicable Governmental Entity all material Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes. Each Group Company has complied in all material respects with all applicable Laws relating to the payment of stamp duties and the reporting and payment of sales, use, ad valorem and value added Taxes.

(b)            No written claim has been made by a Taxing Authority in a jurisdiction where a Group Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Group Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction. The income Tax Returns made available to the Buyer reflect all of the jurisdictions in which the Group Companies are required to remit material income Tax.

(c)            There is no Tax audit or examination or any Proceeding now being conducted, pending or threatened in writing (or, to the Knowledge of the Company, otherwise threatened) with respect to any Taxes or Tax Returns of or with respect to any Group Company. No Group Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been fully resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any Group Company have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, to the Knowledge of the Company, no such deficiency has been threatened or proposed against any Group Company.

(d)            No Group Company has agreed to (or has had agreed to on its behalf) any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending. No Group Company is the beneficiary of any extension of time (other than an automatic extension of time not requiring the consent of the applicable Governmental Entity) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, request for a change of any method of accounting or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity that relates to the Taxes or Tax Returns of any Group Company. No power of attorney granted by any Group Company with respect to any Taxes is currently in force.

(e)            No Group Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

(f)            The Company is (and has been for its entire existence) properly treated as a partnership for U.S. federal and all applicable state and local income Tax purposes. Each Company Subsidiary is (and has been for its entire existence) properly treated for U.S. federal and all applicable state and local income tax purposes as the type of entity set forth opposite its name on Schedule ‎4.8(f). No election has been made (or is pending) to change any of the foregoing.

(g)            No Group Company will be required to include an item of income, or exclude an item of deduction, for any period after the Closing Date (determined with and without regard to the transactions contemplated hereby) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a transaction occurring on or before the Closing Date reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received or paid on or prior to the Closing Date or deferred revenue realized, accrued or received on or prior to the Closing Date, in each case, outside of the Ordinary Course of Business; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; (vi) the application of Code Section 263A (or any similar provision of state, local, or non-U.S. Laws); or (vii) intercompany transaction occurring or any excess loss account existing on or prior to the Closing Date, in each case described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company uses the cash method of accounting for income Tax purposes or will be required to make any payment after the Latest Balance Sheet Date as a result of an election under Section 965 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Group Company has any “long-term contracts” that are subject to a method of accounting provided for in Code Section 460. No Group Company is party to or bound by any closing agreement or similar agreement with any Taxing Authority the terms of which would have an effect on any Group Company after the Latest Balance Sheet Date.

(h)            There is no Lien for Taxes on any of the assets of any Group Company, other than Liens for Taxes not yet due and payable.

(i)             No Group Company has ever been a member of any Affiliated Group (other than an Affiliated Group the common parent of which is a Group Company). No Group Company has any actual or potential liability for Taxes of any other Person (other than any Group Company) as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Group Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement. All amounts payable with respect to (or reference to) Taxes pursuant to any Ordinary Course Tax Sharing Agreement have been timely paid in accordance with the terms of such contracts.

(j)             The unpaid Taxes of the Group Companies (i) did not, as of the Latest Balance Sheet Date, exceed the reserves for Tax liabilities (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Unaudited Balance Sheet (rather than in any notes thereto) and (ii) do not exceed such reserves as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Group Companies in filing their Tax Returns.

(k)            Other than with respect to other U.S. states and localities, no Group Company (i) has or has had in the last five (5) years an office, permanent establishment, branch, agency or taxable presence outside the jurisdiction of its organization or (ii) is or has been in the last five (5) years a resident for Tax purposes in any jurisdiction outside the jurisdiction of its organization.

(l)             No holder of Company Units is a “foreign person” within the meaning of Code Section 1445 or Code Section 1446(f).

(m)           No Group Company has been, in the past two (2) years, a party to a transaction reported or intended to qualify as a reorganization under Code Section 368. No Group Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was governed, or intended or reported to be governed, in whole or in part by Section 355 or Section 361 of the Code in the past two (2) years or that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(e)) that includes the transactions contemplated hereby.

(n)            No election has been made under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Group Company.

(o)            The Company and each Company Subsidiary that is treated as a partnership for U.S. federal income Tax purposes has a valid election under Section 754 of the Code (and any similar provision of state, local or non-U.S. Law) in effect, and each such elections will remain in effect for any taxable period that includes the Closing Date.

(p)            No Group Company has (i) elected to defer the payment of any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) pursuant to Section 2302 of the CARES Act, (ii) deferred payment of any Taxes (including withholding Taxes) pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including, without limitation, the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States) or (iii) claimed any “employee retention credit” pursuant to Section 2301 of the CARES Act.

Section 4.9            Contracts.

(a)            Except as set forth on Schedule 4.9(a), no Group Company is a party to, or bound by, and no asset of any Group Company is bound by, any:

(i)            collective bargaining agreement or other Contract with any labor union, labor organization, or works council (each a “CBA”);

(ii)            Contract with any Material Customer or Material Supplier;

(iii)           written Contract for the employment or engagement of any directors, officers, employees or individual independent contractors providing for an annual base compensation in excess of two hundred thousand dollars ($200,000) (other than “at-will” Contracts that may be terminated upon thirty (30) days’ or less notice without the payment of severance, other than notice periods, severance or termination payments required by Law);

(iv)           Contract under which any Group Company has created, incurred, assumed or borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness of others, in each case, in an amount in excess of one million dollars ($1,000,000);

(v)            Contract resulting in any Lien (other than any Permitted Lien) on any material portion of the assets of any of the Group Companies;

(vi)            license or royalty Contract to which the Group Companies are a party with respect to any Intellectual Property (x) with annual or one-time payments in excess of one million dollars ($1,000,000), (y) with replacement costs required to be expended in excess of one million dollars ($1,000,000) annual or one-time payment if terminated or expires or (z) that is a license for Intellectual Property used in and material to the current products of the Group Company (in each case, other than Contracts relating to unmodified, commercially available off-the-shelf Software licensed on commercially-available terms for less than one million dollars ($1,000,000) in annual fees or Contracts granting non-exclusive licenses to customers, vendors, distributors, suppliers, or resellers of any Group Company entered into in the Ordinary Course of Business);

(vii)           Contract (x) entered into within the five year period preceding the date hereof, for the settlement or avoidance of any dispute regarding the ownership, use, validity or enforceability of Intellectual Property (including consent-to-use and similar contracts) with material ongoing obligations of any Group Company, or (y) that materially restricts the use or licensing of any Owned Intellectual Property;

(viii)          Contract providing for any Group Company to make any capital contribution to, or other investment in, any Person, in an amount in excess of one million dollars ($1,000,000);

(ix)            Contract providing for aggregate future payments to or from any Group Company in excess of five million dollars ($5,000,000) in any calendar year, other than those that can be terminated without material penalty by such Group Company upon ninety (90) days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the Ordinary Course of Business;

(x)             joint venture, partnership, strategic alliance or similar Contract, except for any partnership or strategic alliance Contracts or non-exclusive reseller agreement entered into in the Ordinary Course of Business on a Group Company form reseller agreement, a copy of which has been made available to Buyer;

(xi)            power of attorney;

(xii)           Contract that limits or restricts any Group Company (or after the Closing, the Buyer or any Group Company) from (x) engaging or competing in any line of business or business activity in any jurisdiction or (y) acquiring any material product or asset or receiving material services from any Person or selling any product or asset or performing services for any Person;

(xiii)          Contract that binds any Group Company to any of the following restrictions or terms: (v) a “most favored nation” or similar provision with respect to any Person; (w) a provision providing for the sharing of any revenue or cost-savings with any other Person; (x) “minimum purchase” requirement in excess of one million dollars ($1,000,000) annually; (y) rights of first refusal or first offer (other than those related to real property Leases) or (z) a “take or pay” provision;

(xiv)          Contract pursuant to which any Group Company has granted any sponsorship rights, exclusive marketing, sales representative relationship, franchising consignment, distribution or any other similar right to any third party (including in any geographic area or with respect to any product of the business) in each case, that generated or is expected to generate annual recurring revenue in fiscal year 2020 or fiscal year 2021 in excess of one million dollars ($1,000,000);

(xv)          Contract involving the settlement, conciliation or similar agreement (x) of any Proceeding or threatened Proceeding since February 28, 2017, (y) with any Governmental Entity or (z) pursuant to which any Group Company will have any material outstanding obligation after the Effective Date;

(xvi)         any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any Contract under which the aggregate annual rental payments do not exceed one million dollars ($1,000,000);

(xvii)         any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any Contract under which the aggregate annual rental payments do not exceed two hundred thousand dollars ($200,000);

(xviii)        any Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by any Group Company in an amount in excess of one million dollars ($1,000,000) annually or two million dollars ($2,000,000) over the life of the Contract;

(xix)          Contract requiring any Group Company to guarantee the Liabilities of any Person (other than any other Group Company) or pursuant to which any Person (other than a Group Company) has guaranteed the Liabilities of a Group Company;

(xx)           material interest rate, currency, or other hedging Contracts;

(xxi)          Contracts providing for indemnification by any Group Company, except for any such Contract that is entered into in the Ordinary Course of Business;

(xxii)         Contract concerning confidentiality or non-solicitation obligations that are on-going (other than confidentiality and non-solicitation agreements with customers or prospective customers of the Group Companies or with any of the Group Company’s employees set forth in the applicable Group Company’s standard terms and conditions of sale or standard form of employment agreement, copies of which have previously been delivered to the Buyer, or non-disclosure agreements entered into by the Group Companies with respect to possible business transactions);

(xxiii)            Contract that relates to the future disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties, except for (i) any agreement related to the transactions contemplated hereby, (ii) any non-disclosure or similar agreement entered into in connection with the potential sale of the Company or (iii) any agreement for the purchase or sale of inventory in the Ordinary Course of Business;

(xxiv)            Contract that relates to any completed disposition or acquisition by any Group Company of (x) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (y) any material assets or properties in each case, entered into or consummated after February 28, 2017, other than sales of inventory in the Ordinary Course of Business;

(xxv)            Contract involving the payment of any earn-out or similar contingent payment on or after the date hereof; and

    (A)            Contracts between any of the Group Companies, on the one hand, and any of their respective Affiliates (except for any other Group Company), on the other hand.

(b)            Except as specifically disclosed on Schedule ‎4.9(b), each Contract listed on Schedule 4.9(a) (each, a “Material Contract”) is in full force and effect and is legal, valid, binding and enforceable against the applicable Group Company party thereto and, to the Knowledge of the Company, against each other party thereto, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. The Company has delivered to, or made available for inspection by, the Buyer a complete and accurate copy of each Material Contract (including all exhibits thereto and all material amendments, waivers or other material changes thereto). With respect to all Material Contracts, none of the Group Companies or, to the Knowledge of the Company any other party to any such Material Contract, is in material breach thereof or default thereunder. During the last twelve (12) months, no Group Company has received any written, or to the Knowledge of the Company, oral claim or notice of material breach of or material default under any such Material Contract. To the Knowledge of the Company, no event has occurred, which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any such Material Contract by any Group Company or, to the Knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both). During the last twelve (12) months, no Group Company has received written notice from any other party to any such Material Contract that such party intends to terminate or not renew any such Material Contract.

(c)            Schedule ‎4.9(c) sets forth a complete and accurate list of the names of the ten (10) largest customers of the Group Companies (measured by aggregate billings) during the twelve (12) months ended February 29, 2020 (each, a “Material Customer”) and the amount of revenue generated by such Material Customer during such twelve (12) month period then ended. Since February 29, 2020, (x) no such Material Customer has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (y) there have been no material disputes between any Group Company and any Material Customer.

(d)            Schedule ‎4.9(d) sets forth a complete and accurate list of the names of the Material Suppliers and the amount paid by the Group Companies during such twelve (12) month period then ended. Since February 29, 2020, (x) no such Material Supplier has canceled, terminated or materially and adversely altered its relationship with any Group Company or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Group Company and (y) there have been no material disputes between any Group Company and any Material Supplier.

Section 4.10          Intellectual Property.

(a)            The former and current products, services and operation of the business of the Group Companies have not since the Lookback Date infringed, misappropriated or otherwise violated, and do not currently infringe, misappropriate or otherwise violate, any Intellectual Property of any Person. Except as set forth on Schedule 4.10(a), no Group Company has since the Lookback Date received any written charge, complaint, claim, demand, or notice alleging any such infringement, misappropriation or other violation (including any claim that such Group Company must license or refrain from using any Intellectual Property rights of any Person) or challenging the ownership, registration, validity or enforcement of any material Owned Intellectual Property. To the Knowledge of the Company, no Person is interfering with, challenging, infringing upon, misappropriating or otherwise violating any material Owned Intellectual Property.

(b)            Each Group Company owns, or has a valid right to use, all Intellectual Property that is used in and material to the business of such Group Company as currently conducted. Schedule ‎4.10(b) identifies each patented, issued or registered Intellectual Property and applications for the foregoing, in each case which is owned by or filed in the name of a Group Company. All the Intellectual Property required to be disclosed in Schedule ‎4.10(b) is valid and, to the Knowledge of the Company, enforceable. Each Group Company is the sole and exclusive owner of all right, title and interest in and to all Owned Intellectual Property, free and clear of any Liens, and the Owned Intellectual Property is not subject to any outstanding Order restricting the use or licensing thereof by such Group Company or the business of the Group Companies. All the Owned Intellectual Property required to be disclosed in Schedule ‎4.10(b) that is an issued patent, patent application, registration or application for registration has been maintained effective by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees, except where the applicable Group Company has made a reasonable business judgment to permit such registrations or applications to expire, be canceled or become abandoned.

(c)            Each Group Company has taken commercially reasonable measures to protect the confidentiality of all material trade secrets and any other material confidential information owned by such Group Company (and any confidential information owned by any Person to whom any of the Group Companies has a valid, enforceable confidentiality obligation with respect to such confidential information). Except as required or requested by Law or as part of any audit or examination by a regulatory authority or self-regulatory authority, no such material trade secret or material confidential information has been disclosed by any Group Company to any Person other than to Persons subject to a duty of confidentiality or pursuant to a written agreement restricting the disclosure and use of such trade secrets or confidential information by such Person. No current or former founder, employee, contractor or consultant of any Group Company has any right, title or interest, directly or indirectly, in whole or in part, in any material Owned Intellectual Property. Each Person who has developed any material Owned Intellectual Property for any Group Company has assigned all right, title and interest in and to such Intellectual Property to a Group Company by a valid written assignment or by operation of law. To the Knowledge of the Company, no Person is in violation of any such confidentiality or Intellectual Property assignment agreement.

(d)            The IT Assets are materially sufficient for the purposes for which such IT Assets are used in current business operations of the Group Companies. The Group Companies have in place disaster recovery and security plans and procedures and have taken commercially reasonable steps to safeguard the availability, security and integrity of the IT Assets and all material confidential data and information stored thereon, including from unauthorized access and infection by Unauthorized Code. The Group Companies have maintained in the Ordinary Course of Business all required licenses and service contracts, including the purchase of a sufficient number of license seats for all Software, with respect to the IT Assets.

(e)            Each item of Intellectual Property owned, or material Intellectual Property licensed from a third party, by the Group Companies immediately prior to the Closing will be owned or available for use by the Group Companies immediately subsequent to the Closing on identical terms and conditions as owned or licensed for use by the Group Companies immediately prior to the Closing, except as would not have a Material Adverse Effect.

(f)             Except as set forth on Schedule ‎4.10(f) the Group Companies have not experienced any Security Breaches or material Security Incidents since the Lookback Date and none of the Group Companies is aware of any written or, to the Knowledge of the Company, oral notices or complaints from any Person regarding such a Security Breach or material Security Incident. None of the Group Companies has received any written complaints, claims, demands, inquiries or other notices, including a notice of investigation, from any Person (including any Governmental Entity or self-regulatory authority) or entity regarding any of the Group Companies’ Processing of Personal Information or compliance with applicable Privacy and Security Requirements. Since the Lookback Date, none of the Group Companies have provided or have been obligated to provide notice under any Privacy and Security Requirements regarding any Security Breach or other suspected unauthorized access to or use of any IT Asset, Personal Information, Owned Intellectual Property or Software included in the Owned Intellectual Property.

(g)            Except as set forth on Schedule ‎4.10(g), the Group Companies are and have been in compliance in all material respects with all applicable Privacy and Security Requirements since the Lookback Date. The Group Companies have a valid and legal right (whether contractually, by Law or otherwise) to access or use all Personal Information and Business Data that is subject to Processing by or on behalf of the Group Companies in connection with the use and/or operation of its products, services and business, in the manner such Personal Information and Business Data is accessed and used by the Group Companies. The execution, delivery, or performance of this Agreement and the consummation of the transactions contemplated herein will not violate any applicable Privacy and Security Requirements or result in or give rise to any right of termination or other right to impair or limit the Group Companies’ right to own or process any Personal Information used in or necessary for the conduct of the business of the Group Companies.

(h)            The Group Companies have implemented Privacy Policies as required by applicable Privacy and Security Requirements, and the Group Companies are in compliance in all material respects with all such Privacy Policies.

(i)             The Group Companies have implemented reasonable physical, technical and administrative safeguards designed to protect Personal Information in their possession or control from unauthorized access by any Person, including each of the Group Companies’ employees and contractors, and designed to ensure compliance in all material respects with all applicable Privacy and Security Requirements.

(j)             No source code that constitutes a Trade Secret within the Owned Intellectual Property has been disclosed, licensed, released, escrowed, or made available to any third party, other than an escrow agent or a contractor, consultant or developer pursuant to a written confidentiality agreement. No event has occurred, and no circumstance or condition exists, that (whether with or without the passage of time, the giving of notice or both) will, or would reasonably be expected to, result in a requirement that an escrow agent disclose or deliver any such source code to any third party by any Group Company. None of the Software included in the Owned Intellectual Property links to or integrates with any code licensed under an “open source”, “copyleft” or analogous license (including any license approved by the Open Source Initiative and listed at http://www.opensource.org/licenses, GPL, AGPL or other open source software license) in a manner that has or would require any public distribution of any Software, create material obligations any Group Company’s rights to use or license Software included in the Owned Intellectual Property, or a requirement that any other licensee of such Software be permitted to modify, make derivative works of or reverse-engineer any such Software.

(k)            The key terms with respect to licensing of Intellectual Property (e.g., non-perpetual term, restrictions on sublicensing, absence of a source code license) contained in the customer Contracts provided to the Buyer in the Data Room are representative of the key terms with respect to licensing of Intellectual Property contained in such Contracts entered into by the Group Companies in the Ordinary Course of Business. No vendor, distributor, supplier, or reseller Contracts to which the Group Companies are a party contain a grant to the applicable vendor, distributor, supplier, or reseller of a perpetual Intellectual Property license or a license to source code.

Section 4.11          Information Supplied. The information supplied or to be supplied by the Group Companies for inclusion or incorporation by reference in the Form S-4, any other document submitted or to be submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Form S-4 prior to the time the Form S-4 is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Form S-4 is declared effective by the SEC; (c) the time the proxy statement/prospectus included in the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders; (d) the time of the Buyer Shareholder Meeting, except that no warranty or representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by the Buyer or its Affiliates for inclusion therein; or (e) the Closing (subject, in each case, to the qualifications and limitations set forth in the materials provided by the Group Companies or that are included in such filings and/or mailings).

Section 4.12          Litigation . Except as set forth on Schedule ‎4.12, since the Lookback Date, there have been, and there are no, Proceedings or Orders pending, or to the Knowledge of the Company, threatened against any Group Company or any of their respective properties at Law or in equity or, to the Knowledge of the Company, any director, officer or employee of any Group Company in his or her capacity as such that would, individually or in the aggregate, be material to the Group Companies, taken as a whole.

Section 4.13          Brokerage. Except as set forth on Schedule 4.13, no Group Company has any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Group Company or any of its Affiliates, or the Buyer or any of its Affiliates to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 4.14          Labor Matters.

(a)            The Company has delivered to the Buyer Parties a complete (anonymized) list of all employees, workers and individual consultants of each of the Group Companies as of October 1, 2020 and, as applicable, their classification as exempt or non-exempt under the Fair Labor Standards Act, title and/or job description, leave status and job location, and with respect to each employee, compensation (current annual base salary or wage rate and current target bonus opportunity, if any). All employees of the Group Companies are legally permitted to be employed by the Group Companies in the jurisdiction in which such employees are employed in their current job capacities. Except as set forth on Schedule 4.14(a) and except as would not reasonably be expected to result in material Liabilities to the Group Companies, no freelancer, consultant or other contracting party treated as self-employed whose services the Group Companies uses or has used can effectively claim the existence of an employment relationship with one of these companies.

(b)            No Group Company is a party to or bound by any CBA (including generally applicable collective bargaining agreements), works agreements and company practices relating to employees of any Group Company and no employees of any Group Company are represented by any labor union, works council, trade union, employee organization or other labor organization with respect to their employment with the Group Companies. Since the Lookback Date, no labor union or other labor organization, or group of employees of any Group Company has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. There are no ongoing or, to the Knowledge of the Company, threatened union organizing activities with respect to employees of any Group Company and no such activities have occurred since the Lookback Date. Since the Lookback Date, there has been no actual or, to the Knowledge of the Company, threatened, material unfair labor practice charges, material grievances, strikes, walkouts, work stoppages, slowdowns, picketing, hand billing, arbitrations, or other material labor disputes arising under a CBA against or affecting any Group Company. The Group Companies have no notice or consultation obligations to any labor union, labor organization or works council, which is representing any employee of the Group Companies, in connection with the execution of this Agreement or consummation of the transactions contemplated hereby. No Group Company is bound by a social compensation plan that has not yet been implemented in all material respects and no material reconciliation of interests regarding operational changes has been performed by the respective employer and employees’ representatives. All material liabilities of Group Companies arising from social compensation plans have been met in full and all reconciliations of interests agreed have been fully carried out and the operational changes regulated therein have been fully implemented.

(c)            Except as set forth in Schedule ‎4.14(c), the Group Companies are and, since the Lookback Date, have been in compliance in all material respects with all applicable Laws relating to the employment of labor, including provisions thereof relating to wages and hours, classification (including employee-independent contractor classification and the proper classification of employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and applicable state and local Laws), equal opportunity, employment harassment, discrimination or retaliation, disability rights or benefits, maternity benefits, accessibility, pay equity, workers’ compensation, affirmative action, COVID-19, collective bargaining, workplace health and safety, immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), whistleblowing, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, affirmative action, unemployment insurance and the payment of social security, employee provident fund and other Taxes. There are no obligations or commitments on the part of the Group Companies to maintain a certain number of employees (employment guarantees). Except as set forth in Schedule ‎4.14(c), (i) there are no material Proceedings pending or, to the Knowledge of the Company, threatened against any Group Company with respect to or by any current or former employee or individual independent contractor of any Group Company and (ii) since the Lookback Date, none of the Group Companies has implemented any plant closing or layoff of employees triggering notice requirements under the WARN Act, nor is there presently any outstanding liability under the WARN Act, and no such plant closings or employee layoffs are currently planned or announced.

(d)            Since the Lookback Date, (i) no Group Company has been party to any Proceeding, Order or other dispute involving, or had any material Liability with respect to, any single employer, joint employer or co-employer claims or causes of action by any individual who was employed or engaged by a third party and providing services to any Group Company, and (ii) to the Knowledge of the Company, each third party providing individuals to any Group Company on a temporary, seasonal or leased basis is in compliance in all material respects with all applicable labor and employment Laws.

(e)            Except as would not reasonably be expected to result in material Liabilities to the Group Companies: since the Lookback Date, (i) each of the Group Companies has withheld all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to employees; (ii) no Group Company has been liable for any arrears of wages, compensation, Taxes, penalties or other sums; (iii) each of the Group Companies has paid in full to all employees and individual independent contractors all wages, salaries, commissions, bonuses, benefits and other compensation due and payable to or on behalf of such employees or individual independent contractor; and (iv) each individual who has provided or is currently providing services to any Group Company, and has been classified as (x) an independent contractor, consultant, leased employee, or other non-employee service provider, or (y) an exempt employee, has been properly classified as such under all applicable Laws including relating to wage and hour and Tax. None of the Group Companies is materially liable for any delinquent payment to any trust or other fund or to any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for any Group Company personnel (other than routine payments to be made in the Ordinary Course of Business).

(f)            To the Knowledge of the Company, no employee or individual independent contractor of any Group Company is, with respect to his or her employment by or relationship with any Group Company, in material breach of the terms of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, non-solicitation agreement or restrictive covenant (i) owed to the Group Companies; or (ii) owed to any third party with respect to such person’s right to be employed or engaged by the Group Companies. No senior executive or employee with annualized base compensation at or above $250,000 of any Group Company has provided oral or written notice of any present intention to terminate his or her relationship with any Group Company within the first twelve (12) months following the Closing.

(g)            Since the Lookback Date, the Group Companies have promptly, thoroughly, and impartially investigated all sexual harassment or other discrimination or retaliation allegations of which any of them has Knowledge. With respect to each such allegation with potential merit, the Group Companies have taken prompt corrective action that is reasonably calculated to prevent further improper conduct. The Group Companies do not reasonably expect any material Liabilities with respect to any such allegations and to the Knowledge of the Company, there are no allegations which have been made relating to officers, directors, employees, contractors, or agents of the Group Companies, that, if known to the public, would bring the Group Companies into material disrepute.

(h)            No employee layoff, facility closure or shutdown (whether voluntary or by Order), reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, or reduction in salary or wages, or other workforce changes affecting employees or individual independent contractors of any Group Company has occurred since March 1, 2020 or is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19. The Company has not otherwise experienced any material employment-related liability with respect to COVID-19. No current or former employee of any Group Company has filed or, to the Knowledge of the Company, has threatened, any claims against any Company Group related to COVID-19.

Section 4.15          Employee Benefit Plans.

(a)            Schedule ‎4.15(a) sets forth a list of each material Company Employee Benefit Plan. With respect to each material Company Employee Benefit Plan, the Company has made available to the Buyer true and complete copies of, as applicable, (i) the current plan document (and all amendments thereto), (ii) the most recent summary plan description (with all summaries of material modifications thereto), (iii) the most recent determination, advisory or opinion letter received from the Internal Revenue Service (the “IRS”), (iv) the most recently filed Form 5500 annual report with all schedules and attachments as filed, and (v) all related insurance Contracts, trust agreements or other funding arrangements.

(b)            Except as set forth on Schedule ‎4.15(b), (i) no Company Employee Benefit Plan provides, and no Group Company has any current or potential obligation to provide, retiree or post-employment health or life insurance or any other retiree or post-employment welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the covered Person pays the full cost of coverage, (ii) no Company Employee Benefit Plan is, and no Group Company sponsors, maintains or contributes to (or is required to contribute to), or has any Liability(including on account of an ERISA Affiliate) under or with respect to a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code, and (iii) no Group Company contributes to or has any obligation to contribute to, or has any Liability (including on account of an ERISA Affiliate) under or with respect to, any “multiemployer plan,” as defined in Section 3(37) of ERISA. No Company Employee Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (y) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Group Company has any, or is reasonably expected to have any, Liability under Title IV of ERISA or on account of being considered a single employer under Section 414 of the Code with any other Person.

(c)            Each Company Employee Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has timely received, or may rely upon, a current favorable determination, advisory or opinion letter from the IRS and, to the Knowledge of the Company, nothing has occurred that would reasonably be expected to cause the loss of the tax-qualified status or to adversely affect the qualification of such Company Employee Benefit Plan. Each Company Employee Benefit Plan has been established, operated, maintained, funded and administered in accordance in all material respects with its respective terms and in compliance in all material respects with all applicable Laws, including ERISA and the Code. Except as would not reasonably be expected to result in a material Liability to any of the Group Companies, there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Company Employee Benefit Plan. There is no Proceeding (other than routine and uncontested claims for benefits) pending or, to the Knowledge of the Company, threatened, with respect to any Company Employee Benefit Plan or against the assets of any Company Employee Benefit Plan. The Group Companies have complied in all material respects with the requirements of the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010, as amended (the “ACA”), and none of the Group Companies has incurred (whether or not assessed), nor is reasonably expected to incur or be subject to, any material penalty or Tax under the ACA (including with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable) or under Section 4980H, 4980B or 4980D of the Code. With respect to each Company Employee Benefit Plan and except as would not reasonably be expected to result in a material Liability to any of the Group Companies, all contributions, distributions, reimbursements and premium payments that are due have been timely made in accordance with the terms of the Company Employee Benefit Plan and in compliance with the requirements of applicable Law, and all contributions, distributions, reimbursements and premium payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued. Each “defined contribution plan” (as defined in Section 3(34) of ERISA) that was previously maintained, merged into another plan or terminated by any Group Company was at any relevant time merged into another plan or terminated, as applicable, in accordance with such plan’s terms and the requirements of all applicable Laws, including ERISA and the Code and Treasury Regulation Section 1.401(k)-1(d)(4)(i) in all material respects, and none of the Group Companies has any current or outstanding material Liability with respect to any such prior plan.

(d)            Schedule 4.15(a) contains a complete and conclusive list of, and separately designates, all Pension Agreements on the basis of which any Group Company is obliged to provide occupational pension benefits either directly or through an external pension provider to current or former employees, to current or former managing directors or to their surviving dependents who are located outside of the United States. Insofar as the Pension Agreements concern direct pension commitments, the amount of the defined benefit obligation and the number of beneficiaries (active employees, former employees with vested entitlements and company pensioners) is definitively set out in the actuarial reports of 29 February 2020 submitted to the Buyer, which have been prepared in accordance with GAAP.

(e)            Except as set forth on ‎Section 4.15(e), neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby, alone or together with any other event would, directly or indirectly, (i) result in any payment or benefit becoming due or payable, or required to be provided, to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former officer, employee, director or individual independent contractor of the Group Companies under a Company Employee Benefit Plan or otherwise, (iii) result in the acceleration of the time of payment, vesting or funding, or forfeiture, of any such benefit or compensation under a Company Employee Benefit Plan or otherwise, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Group Companies to any current or former officer, employee, director or individual independent contractor of the Group Companies, or (v) limit or restrict the Group Companies’ or the Buyer’s ability to merge, amend or terminate any Company Employee Benefit Plan.

(f)            Without limiting the generality of the foregoing, with respect to each Company Employee Benefit Plan that is primarily for the benefit of employees, directors, individual service providers or individual independent contractors of the Group Company who reside or work primarily outside of the United States (each, a “Foreign Plan”): (i) each Foreign Plan required to be registered or intended to meet certain regulatory requirements for favorable tax treatment has been timely and properly registered and has been maintained in all material respects in good standing with the applicable regulatory authorities and requirements; (ii) no Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, provident fund, or gratuity fund, scheme, plan or arrangement; and (iii) all Foreign Plans that are required to be funded are fully funded, and adequate reserves have been established with respect to any Foreign Plan that is not required to be funded.

(g)            Each Company Employee Benefit Plan or other arrangement that is, in any part, a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been operated and maintained in compliance with Section 409A of the Code and applicable guidance thereunder in all material respects. No Person has any right against the Group Companies to be grossed up for, reimbursed or otherwise indemnified for any Tax or related interest or penalties incurred by such Person, including under Sections 409A or 4999 of the Code or otherwise.

(h)            Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby could, either alone or in conjunction with any other event, result in the payment or provision of any amount or benefit that could, individually or in combination with any other payment, constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code).

(i)            At all relevant times, the Company Employee Benefit Plans have been adjusted regularly in particular as required by Section 16 of the German Company Pension Act (Betriebsrentengesetz - BetrAVG) and, where applicable, by contractual or other provisions, and no backlog adjustments (nachholende Anpassung) must be made for periods up to the Closing Date.

Section 4.16          Insurance. Schedule 4.16 contains a true, correct and complete list of all material insurance policies carried by or for the benefit of the Group Companies (the “Insurance Policies”) and the scope of coverage of each such Insurance Policy. Each Insurance Policy is legal, valid, binding and enforceable on the applicable Group Company, is in full force and effect, and no written notice of cancellation or termination has been received by any Group Company with respect to any such Insurance Policy, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. All premiums due under such policies have been paid in accordance with the terms of such Insurance Policy. No Group Company is in material breach or material default under, nor has it taken any action or failed to take any action which, with notice or the lapse of time, or both, would constitute a material breach or material default under, or permit a material increase in premium, cancellation, material reduction in coverage, material denial or non-renewal with respect to any Insurance Policy. During the twelve (12) months prior to the Effective Date, there have been no material claims by or with respect to the Group Companies under any Insurance Policy as to which coverage has been denied or disputed in any material respect by the underwriters of such Insurance Policy.

Section 4.17          Compliance with Laws; Permits.

(a)            Except as set forth on Schedule ‎4.17(a), (i) each Group Company is and, since the Lookback Date has been, in compliance in all material respects with all Laws and Orders applicable to the conduct of the Group Companies and (ii) since the Lookback Date, no Group Company has received any written, or oral notice from any Governmental Entity or any other Person alleging a material violation of or noncompliance with any such Laws or Orders that remains uncured and outstanding.

(b)            Each Group Company holds all material permits, licenses, registrations, approvals, consents, accreditations, waivers, exemptions and authorizations of any Governmental Entity required for the ownership and use of its assets and properties or the conduct of its business (including for the occupation and use of the Leased Real Property) as currently conducted (collectively, “Permits”) and is in compliance with all terms and conditions of such Permits, except where the failure to have such Permits would not be reasonably expected to be, individually or in the aggregate, material to the business of the Group Companies. All of such Permits are valid and in full force and effect and none of such Permits will be terminated as a result of, or in connection with, the consummation of the transactions contemplated hereby. No Group Company is in material default under any such Permit and no condition exists that, with the giving of notice or lapse of time or both, would constitute a material default under such Permit, and no Proceeding is pending or, to the Knowledge of the Company, threatened, to suspend, revoke, withdraw, modify or limit any such Permit in a manner that has had or would reasonably be expected to have a material impact on the ability of the applicable Group Company to use such Permit or conduct its business.

Section 4.18          Environmental Matters. Except as set forth in Schedule ‎4.17, (a) each Group Company is, and since the Lookback Date, has been, in compliance in all material respects with all Environmental Laws; (b) each Group Company has since the Lookback Date timely obtained and maintained, and is, and for the Lookback Date, has been, in compliance in all material respects with, all Permits required by Environmental Laws (collectively, the “Environmental Permits”); (c) no Group Company has received any written notice regarding any actual or alleged material violation of, or material Liabilities under, any Environmental Laws, the subject of which remains unresolved; (d) no Group Company has (i) used, generated, manufactured, distributed, sold, treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released, or (ii) to the Knowledge of the Company, exposed any Person to, or owned, leased or operated any property or facility contaminated by, any Hazardous Materials, that has resulted or could result in material Liability to any of the Group Companies under Environmental Laws; (e) no consent, approval or authorization of or registration or filing with any Governmental Entity is required by Environmental Laws (including the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq.) or Environmental Permits in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby; and (f)  no Group Company has assumed, undertaken or become subject to any material Liability of any other Person, or provided an indemnity with respect to any material Liability, in each case under Environmental Laws. The Group Companies have provided to the Buyer true and correct copies of all material environmental, health and safety assessments, reports and audits relating to any of the Group Companies or their current properties, facilities or operations, that in each case, were prepared or conducted on or after the Lookback Date and are in the Group Companies’ possession or reasonable control.

Section 4.19          Title to and Sufficiency of Assets. Each Group Company has good and marketable title to, or, in the case of leased or subleased assets, a valid and binding leasehold interest in, or, in the case of licensed assets, a valid license in, all of its assets and properties free and clear of all Liens other than Permitted Liens (collectively, the “Assets”). The Assets constitute all of the material assets and properties necessary to conduct the business of the Group Companies after the Closing, in all material respects, as it has been operated for the twelve (12) months prior to the Effective Date.

Section 4.20          Affiliate Transactions. Except for (a) employment relationships and compensation and benefits, (b) transactions with any portfolio company of any Interested Party in the Ordinary Course of Business on arms’-length terms, or (c) as disclosed on Schedule ‎4.20, (x) there are no Contracts (except for the Governing Documents) between any of the Group Companies, on the one hand, and any Interested Party on the other hand and (y) no Interested Party (i) owes any amount to any Group Company, (ii) owns any material property or right, tangible or intangible, that is used by any Group Company, or (iii) owns any direct or indirect interest of any kind in, or controls or is a director, officer, employee, stockholder, partner or member of, or consultant to, or lender to or borrower from, or has the right to participate in the profits of, any Person which is a supplier, customer or landlord, of any Group Company (other than in connection with ownership of less than five percent (5%) of the stock of a publicly traded company) (such transactions or arrangements described in clauses (x) and (y), “Affiliated Transactions”).

Section 4.21          Trade & Anti-Corruption Compliance.

(a)            Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of its respective the directors, officers, managers or employees or any agent or third party representative acting on behalf of the Company of any of its Subsidiaries, is or has been in the last five (5) years: (i) a Sanctioned Person; (ii) organized, resident, or located in a Sanctioned country; (iii) operating in, conducting business with, or otherwise engaging in dealings or transactions with or for the benefit of any Sanctioned Person or in any Sanctioned Country in either case in violation of applicable Sanctions in connection with the business of the Company; (iv) engaging in any export, re-export, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable Ex-Im Laws; or (v) otherwise in violation of any applicable Sanctions or applicable Ex-Im Laws or U.S. anti-boycott requirements (together “Trade Controls”), in connection with the business of the Company.

(b)            In the last five (5) years, in connection with or relating to the business of the Company, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of the directors, officers, managers or employees of the Company or any agent or third party representative acting on behalf of the Company or any of its Subsidiaries: (i) has made, authorized, solicited or received any bribe, unlawful rebate, payoff, influence payment or kickback, (ii) has established or maintained, or is maintaining, any unlawful fund of corporate monies or properties, (iii) has used or is using any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel or other unlawful expenses, or (iv) has, directly or indirectly, made, offered, authorized, facilitated, received or promised to make or receive, any payment, contribution, gift, entertainment, bribe, rebate, kickback, financial or other advantage, or anything else of value, regardless of form or amount, to or from any Governmental Entity or any other Person, in each case in violation of applicable Anti-Corruption Laws.

(c)            As of the Effective Date, there are no, and in the last five (5) years there have been no, Proceedings or Orders alleging any such contributions, payments, bribes, kickbacks, expenditures, gifts or fraudulent conduct by or on behalf of any Group Company or any other such violation of any Trade Controls or Anti-Corruption Laws by or on behalf of any Group Company.

Section 4.22          No Other Representations and Warranties. EACH BUYER PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES, INCLUDING THE SPONSOR, HEREBY ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS ARTICLE IV OR IN ANY ANCILLARY AGREEMENT AND THE BLOCKERS IN ARTICLE V OR IN ANY ANCILLARY AGREEMENT, NO GROUP COMPANY OR AFFILIATE THEREOF NOR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE GROUP COMPANIES OR ANY OTHER PERSON OR THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER PARTIES, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OF ANY DOCUMENTATION, FORECASTS, PROJECTIONS OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING, AND (B) NONE OF THE BUYER PARTIES NOR THEIR ANY OF THEIR RESPECTIVE AFFILIATES, INCLUDING THE SPONSOR, RELIED ON ANY REPRESENTATION OR WARRANTY FROM OR ANY OTHER INFORMATION PROVIDED BY ANY GROUP COMPANY OR ANY AFFILIATE THEREOF, INCLUDING ANY COMPANY UNITHOLDER OR COMPANY OPTIONHOLDER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS ARTICLE IV OR IN ANY ANCILLARY AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED BY THE COMPANY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS SECTION 4.22 SHALL LIMIT ANY CLAIM OR CAUSE OF ACTION (OR RECOVERY IN CONNECTION THEREWITH) WITH RESPECT TO FRAUD.

Article V
REPRESENTATIONS AND WARRANTIES OF THE BLOCKERS

As an inducement to the Buyer Parties to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the applicable section of the Blocker Disclosure Schedules, the Blockers hereby severally, and not jointly, represent and warrant to the Buyer Parties as follows:

Section 5.1            Organization; Authority; Enforceability.

(a)            Such Blocker is a corporation or limited liability company, as the case may be, duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(b)            Such Blocker has all the requisite corporate or limited liability company power and authority to own, lease and operate its assets and properties and to carry on its businesses as presently conducted in all material respects.

(c)            Such Blocker is not in violation of any of the Governing Documents of such Blocker. Such Blocker is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

(d)            Such Blocker has the requisite corporate or limited liability company power and authority, as applicable, to execute and deliver this Agreement and to perform its obligations hereunder, and to consummate the transactions contemplated hereby, subject in the case of the consummation of such Blocker’s Blocker Merger, to receiving such Blocker’s Blocker Written Consent. Such Blocker’s Blocker Written Consent is the only vote or approval of the holders of any class or series of capital stock of such Blocker necessary to adopt this Agreement and to approve the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate or limited liability company actions, as applicable. This Agreement has been duly executed and delivered by such Blocker and constitutes a valid, legal and binding agreement of such Blocker, enforceable against such Blocker in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.

Section 5.2            Non-contravention. Except as set forth in Schedule ‎5.2, and subject to the receipt of such Blocker’s Blocker Written Consent, the filing of such Blocker’s Blocker Certificate of Merger and the filings pursuant to ‎Section 8.8, and assuming the truth and accuracy of the Buyer Parties’ representations and warranties in Section 6.2 and in Section 6.11, neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby by such Blocker will (a) conflict with or result in any breach of any material provision of the Governing Documents of such Blocker; (b) require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration of material rights) under, any of the terms, conditions or provisions of any material Contract or material lease (in each case, whether with or without the giving of notice, the passage of time or both); (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of such Blocker; or (e) except for violations which would not prevent or materially delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to such Blocker, excluding from the foregoing clauses (b), (c), (d) and (e), such requirements, violations or defaults which would not reasonably be expected to be material to such Blocker.

Section 5.3            Capitalization. The issued and outstanding Blocker Equity Interests and the owners thereof for each Blocker are set forth on Schedule ‎5.3. All outstanding Blocker Equity Interests of such Blocker are validly issued and, in the case of PDI Blocker, fully paid and non-assessable, and are not subject to preemptive rights or any other Liens (other than Securities Liens). Other than such Blocker’s Blocker Equity Interests, there are no options, warrants or other rights to subscribe for, purchase or acquire from such Blocker any Equity Interests in such Blocker or securities convertible into or exchangeable or exercisable for any Equity Interests in such Blocker. Other than such Blocker’s Governing Documents, there are no stockholder agreements, operating agreements, voting trusts or other agreements or understandings to which such Blocker is a party or by which it is bound relating to the voting of any such Blocker’s Blocker Equity Interests.

Section 5.4            Holding Company; Ownership.

(a)            Such Blocker is a holding company and was formed for the sole purpose of investing in Equity Interests of the Company and has never owned, and does not own, any assets except for Equity Interests of the Company, cash and other assets typical of a holding company. Since its respective formation, such Blocker has not engaged in any business activities. Except for Liabilities incident to its formation and organization, and maintenance of its existence and in connection with its ownership of Equity Interests in the Company, such Blocker has not incurred any Liabilities.

(b)            Such Blocker is the owner of record of the Equity Interests of the Company set forth next to such Blocker’s name on Schedule ‎4.3(a) (such Equity Interests, the Blocker’s “Blocker Owned Company Equity Interests”). Each Blocker has, and as of immediately prior to the Closing, such Blocker will have, good and valid title to such Blocker’s Blocker Owned Company Equity Interests, free and clear of all Liens, other than Permitted Liens and Securities Liens.

Section 5.5            Information Supplied. The information supplied or to be supplied by such Blocker for inclusion or incorporation by reference in the Form S-4, any other document submitted or to be submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Form S-4 prior to the time the Form S-4 is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Form S-4 is declared effective by the SEC; (c) the time the proxy statement/prospectus included in the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to Buyer Shareholders; or (d) the time of the Buyer Shareholder Meeting, except that no warranty or representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by the Buyer or its Affiliates for inclusion therein, and subject, in each case, to the qualifications and limitations set forth in the materials provided by such Blocker or that are included in such filings and/or mailings.

Section 5.6         Litigation. Since the Lookback Date, there have not been, and there are no, material Proceedings or Orders (including those brought or threatened by or before any Governmental Entity) pending, or to the Knowledge of such Blocker, threatened against or otherwise relating to such Blocker or any of its properties at Law or in equity (provided that for purposes of this Section 5.6, any direct or indirect Equity Interest in any Group Company shall not be deemed a “property” of such Blocker), or any director, officer or employee of such Blocker in such Person’s capacity as such.

Section 5.7            Brokerage. Except as set forth on Schedule ‎5.7, such Blocker does not have any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of such Blocker or any of its Affiliates, or the Buyer or any of its Affiliates to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 5.8            Foreign Status. Such Blocker is not a “foreign person” as defined in 31 CFR 800.24.

Section 5.9            Affiliate Transactions. Except as disclosed on ‎Section 5.9, there are no transactions or arrangements (a) between any Blocker, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder or Affiliate of any Blocker or any family member of the foregoing Persons (such transactions or arrangements, “Blocker Affiliated Transactions”).

Section 5.10         Tax Matters.

(a)            All income and other material Tax Returns required to be filed by or with respect to such Blocker have been timely filed pursuant to applicable Laws. All income and other material Tax Returns filed by or with respect to such Blocker are true, complete and correct in all material respects and have been prepared in material compliance with all applicable Laws. Such Blocker has paid all material amounts of Taxes due and payable by it (whether or not shown as due and payable on any Tax Return). Such Blocker has timely and properly withheld and paid to the applicable Governmental Entity all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes.

(b)            There is no Tax audit or examination or any Proceeding now being conducted, pending or threatened in writing (or, to the Knowledge of such Blocker, otherwise threatened) with respect to any Taxes or Tax Returns of or with respect to such Blocker. Such Blocker has not commenced a voluntary disclosure proceeding in any jurisdiction that has not been fully resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against such Blocker have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, to the knowledge of such Blocker, no such deficiency has been threatened or proposed against any Blocker.

(c)            Such Blocker has not agreed to (or has had agreed to on its behalf) any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending. Such Blocker is not the beneficiary of any extension of time (other than an automatic extension of time not requiring the consent of the applicable Governmental Entity) within which to file any Tax Return not previously filed.

(d)            Such Blocker is (and has been for its entire existence) properly treated as a corporation for U.S. federal and all applicable state and local income Tax purposes.

Section 5.11          No Other Representations or Warranties. EACH BUYER PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES, INCLUDING THE SPONSOR, HEREBY ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE, SEVERALLY AND NOT JOINTLY, BY EACH BLOCKER IN THIS ARTICLE V OR IN ANY ANCILLARY AGREEMENT AND BY THE COMPANY IN ARTICLE IV OR IN ANY ANCILLARY AGREEMENT, NONE OF THE BLOCKERS, ANY AFFILIATE THEREOF OR ANY OTHER PERSON MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE BLOCKERS OR ANY OTHER PERSON OR THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER PARTIES, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OF ANY DOCUMENTATION, FORECASTS, PROJECTIONS OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING, AND (B) NONE OF THE BUYER PARTIES NOR THEIR ANY OF THEIR RESPECTIVE AFFILIATES, INCLUDING THE SPONSOR, RELIED ON ANY REPRESENTATION OR WARRANTY FROM OR ANY OTHER INFORMATION PROVIDED BY ANY BLOCKER OR ANY AFFILIATE THEREOF, INCLUDING ANY GROUP COMPANY OR ANY BLOCKER OWNER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE, SEVERALLY AND NOT JOINTLY, BY EACH BLOCKER IN THIS ARTICLE V OR IN ANY ANCILLARY AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED BY EACH OF THE BLOCKERS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS SECTION 5.11 SHALL LIMIT ANY CLAIM OR CAUSE OF ACTION (OR RECOVERY IN CONNECTION THEREWITH) WITH RESPECT TO FRAUD.

Article VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES

As an inducement to the Blockers and the Company to enter into this Agreement and consummate the transactions contemplated hereby, except as set forth in the applicable section of the Buyer Disclosure Schedules or as disclosed in any report, schedule, form, statement or other document filed with, or furnished to, the SEC by the Buyer and publicly available prior to the Effective Date, the Buyer Parties hereby represent and warrant as follows:

Section 6.1            Organization; Authority; Enforceability.

(a)            Until the occurrence of the Domestication, the Buyer is an exempted company with limited liability duly incorporated under the Laws of the Cayman Islands with the requisite power and authority to enter into this Agreement and to perform its obligations hereunder, and upon the occurrence of the Domestication, the Buyer will be duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. Each Merger Sub is a limited liability company and each Merger Sub is duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(b)            The Buyer Parties have all the requisite corporate or limited liability company power and authority to own, lease and operate their assets and properties and to carry on their businesses as presently conducted in all material respects.

(c)            Each Buyer Party is duly qualified, licensed or registered to do business under the Laws of each jurisdiction in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to be material to the Buyer Parties, taken as a whole.

(d)            A correct and complete copy of the Buyer Memorandum and Articles, as in effect on the Effective Date, are filed as Exhibit 3.1 to the Form 8-K filed with the SEC on April 28, 2020. The Buyer is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

(e)            Each Buyer Party has the requisite corporate or limited liability company power and authority, as applicable, to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to perform its obligations hereunder and thereunder, and, subject to the receipt of the requisite approval of the Buyer Shareholder Voting Matters by the Buyer Shareholders, to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or limited liability company actions, as applicable. This Agreement has been (and each of the Ancillary Agreements to which each Buyer Party will be a party will be) duly executed and delivered by such Buyer Party and constitutes a valid, legal and binding agreement of each Buyer Party, enforceable against such Buyer Party in accordance with their terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.

Section 6.2            Non-contravention. Subject to the receipt of the requisite approval of the Buyer Shareholder Voting Matters by the Buyer Shareholders, the filing of the Certificates of Merger, and the filings pursuant to ‎Section 8.8 and Section 8.19, and assuming the truth and accuracy of the Company’s representations and warranties contained in ‎Section 4.1(a) and each Blocker’s representations and warranties contained in Section 5.2, neither the execution and delivery of this Agreement or any Ancillary Agreement nor the consummation of the transactions contemplated hereby or thereby will (a) conflict with or result in any material breach of any provision of the Governing Documents of any Buyer Party; (b) require any material filing with, or the obtaining of any material consent or approval of, any Governmental Entity; (c) result in a material violation of or a material default (or give rise to any right of termination, cancellation, or acceleration) under, any of the terms, conditions or provisions of any note, mortgage, other evidence of indebtedness, guarantee, license agreement, lease or other Contract to which any Buyer Party is a party or by which any Buyer Party or any of their respective assets may be bound; (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Buyer; or (e) except for violations which would not prevent or delay the consummation of the transactions contemplated hereby, violate in any material respect any Law, Order, or Lien applicable to any Buyer Party, excluding from the foregoing clauses (b), (c), (d) and (e) such requirements, violations or defaults which would not reasonably be expected to be material to the Buyer Parties, taken as a whole, or materially affect any Buyer Parties’ ability to perform its obligations under this Agreement and the Ancillary Agreements or to consummate the transactions hereby or thereby. The Required Vote is the only vote of the holders of any class or series of the Buyer capital stock necessary to approve the transactions contemplated by this Agreement and the Ancillary Agreements.

Section 6.3         Capitalization.

(a)            As of the Effective Date, the authorized share capital of the Buyer consists of (i) five hundred million (500,000,000) Buyer Class A Ordinary Shares, (ii) fifty million (50,000,000) Buyer Class B Ordinary Shares, and (iii) one million (1,000,000) preference shares, par value one ten-thousandth of one dollar ($0.0001) per share (“Buyer Preference Shares”). As of the Effective Date (and for the avoidance of doubt, without giving effect to the Domestication, the PIPE Investment, the Forward Purchase Agreement, the Backstop Agreement or any Permitted Equity Financing), (A) forty-one million four-hundred thousand (41,400,000) Buyer Class A Ordinary Shares are issued and outstanding, (B) fifteen million three hundred fifty thousand (15,350,000) Buyer Class B Ordinary Shares are issued and outstanding, (C) no Buyer Preference Shares are issued and outstanding, and (D) twenty-four million eighty thousand (24,080,000) warrants are issued and outstanding (the “Buyer Warrants”) entitling the holder thereof to purchase one (1) Buyer Class A Ordinary Share at an exercise price of eleven dollars and fifty cents ($11.50) per Buyer Warrant. As of the Effective Date, all outstanding Buyer Class A Ordinary Shares, Buyer Class B Ordinary Shares and Buyer Warrants are (1) issued in compliance in all material respects with applicable Law and (2) not issued in breach or violation of preemptive rights or Contract. As of the Effective Date, except in each case (i) as set forth in the Buyer Governing Documents, the Subscription Agreements, the Sponsor Side Letter, this Agreement, or the Buyer SEC Documents and (ii) for Buyer Class A Ordinary Shares, Buyer Class B Ordinary Shares and Buyer Warrants, the Forward Purchase Securities, the Backstop Agreement and the Buyer Share Redemption, there are no outstanding (x) outstanding Equity Interests of the Buyer, (y) options, warrants, convertible securities, stock appreciation, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit, other equity-based compensation award or similar rights with respect to the Buyer or other rights (including preemptive rights) or agreements, arrangement or commitments of any character, whether or not contingent, of the Buyer to acquire from any Person, and no obligation of the Buyer to issue or sell, or cause to be issued or sold, any Equity Interest of the Buyer, or (z) obligations of the Buyer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, Equity Interests, securities convertible into or exchangeable for such Equity Interests, options, equity equivalents, interests or rights or to make any investment in any other Person (other than this Agreement). Except as set forth on Schedule ‎6.3(a) and the Equity Interests the Buyer holds in the Merger Subs, the Buyer does not hold any direct or indirect Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding).

(b)         Each Merger Sub is wholly-owned by the Buyer, and no Merger Sub holds equity interests or rights, options, warrants, convertible or exchangeable securities, subscriptions, calls, puts or other analogous rights, interests, agreements, arrangements or commitments to acquire or otherwise relating to any equity or voting interest of any other Person.

(c)         The Buyer Class A Common Stock and the Buyer Class B Common Stock to be issued to the Blocker Owners and the Company Optionholders pursuant to this Agreement, will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights or Contract, and (iv) be issued to the Blocker Owners and the Company Optionholders with good and valid title, free and clear of any Liens other than Securities Liens and any restrictions set forth in the Buyer Certificate of Incorporation, the Investor Rights Agreement and the Company A&R LLCA. The Buyer Class V Common Stock to be issued to the Company Unitholders pursuant to this Agreement will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights or Contract, and (iv) be issued to the Company Unitholders with good and valid title, free and clear of any Liens other than Securities Liens and any restrictions set forth in the Buyer Certificate of Incorporation, the Investor Rights Agreement and the Company A&R LLCA.

(d)        As of the Effective Date, other than as set forth on Schedule ‎6.3(d), the Buyer has no obligations with respect to or under any Indebtedness of the Buyer.

Section 6.4         Information Supplied; Form S-4. The information supplied or to be supplied by the Buyer for inclusion in the Form S-4, the Additional Buyer Filings, any other Buyer SEC Filing, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated hereby (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available (provided, if such information is revised by any subsequently filed amendment to the Form S-4 prior to the time the Form S-4 is declared effective by the SEC, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Form S-4 is declared effective by the SEC; (c) the time the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders; (d) the time of the Buyer Shareholder Meeting; or (e) the Closing (subject to the qualifications and limitations set forth in the materials provided by the Buyer or that are included in such filings and/or mailings). The Form S-4 will, at the time it is mailed to the Buyer Shareholders, comply in all material respects with the applicable requirements of the Securities Act, the Securities Exchange Act and the rules and regulations of the SEC thereunder applicable to the Form S-4.

Section 6.5         Litigation. There is no material Proceeding pending or, to the Knowledge of the Buyer, threatened against or affecting the Buyer or any Merger Sub or any of its or their respective properties or rights.

Section 6.6         Brokerage. Except as set forth on Schedule ‎6.6, neither the Buyer nor any Merger Sub has incurred any Liability, in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of the Buyer to pay a finder’s fee, brokerage or agent’s commissions or other like payments.

Section 6.7         Trust Account. As of the Effective Date, the Buyer has at least four hundred fourteen million dollars ($414,000,000) (the “Trust Amount”) in the Trust Account, with such funds invested in United States government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of the Buyer, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect by the Buyer or the Trustee, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated by the Buyer. The Buyer is not a party to or bound by any side letters with respect to the Trust Agreement or (except for the Trust Agreement) any Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the Buyer SEC Documents to be inaccurate in any material respect or (b) explicitly by their terms, entitle any Person (other than (i) the Buyer Shareholders who shall have exercised their rights to participate in the Buyer Share Redemption, (ii) the underwriters of the Buyer’s initial public offering, who are entitled to the Deferred Discount (as such term is defined in the Trust Agreement) and (iii) the Buyer, with respect to income earned on the proceeds in the Trust Account to cover any of its Tax obligations and up to $100,000 of interest on such proceeds to pay dissolution expenses), to any portion of the proceeds in the Trust Account. There are no Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened with respect to the Trust Account.

Section 6.8         Buyer SEC Documents; Controls.

(a)         The Buyer has timely filed or furnished all material forms, reports, schedules, statements and other documents required to be filed by it with the SEC since the consummation of the initial public offering of the Buyer’s securities, together with any material amendments, restatements or supplements thereto, all such forms, reports, schedules, statements and other documents required to be filed or furnished under the Securities Act or the Securities Exchange Act (excluding Section 16 under the Securities Exchange Act) (all such forms, reports, schedules, statements and other documents filed with the SEC, the “Buyer SEC Documents”). As of their respective dates, each of the Buyer SEC Documents, as amended (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), complied in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Buyer SEC Documents. None of the Buyer SEC Documents contained, when filed or, if amended prior to the Effective Date, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(b)         Each of the financial statements of the Buyer included in the Buyer SEC Documents, including all notes and schedules thereto, complied in all material respects, when filed or if amended prior to the Effective Date, as of the date of such amendment, with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the Securities Exchange Act) and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of the Buyer, as of their respective dates and the results of operations and the cash flows of the Buyer, for the periods presented therein.

(c)         Since the consummation of the initial public offering of the Buyer’s securities, the Buyer has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any Buyer SEC Document. Each such certification is correct and complete. The Buyer maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning the Buyer is made known on a timely basis to the individuals responsible for the preparation of the Buyer’s SEC filings. As used in this ‎Section 6.8(c), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

Section 6.9         Listing. Prior to the Domestication, the issued and outstanding Buyer Class A Ordinary Shares and the Buyer Warrants (the foregoing, collectively, the “Buyer Public Securities”) are registered pursuant to Section 12(b) of the Securities Exchange Act and are listed for trading on the Stock Exchange. There is no Proceeding or investigation pending or, to the Knowledge of the Buyer, threatened against the Buyer by the Stock Exchange or the SEC with respect to any intention by such entity to deregister the Buyer Public Securities or prohibit or terminate the listing of the Buyer Public Securities on the Stock Exchange. The Buyer has taken no action that would reasonably be likely to result in the termination of the registration of the Buyer Public Securities under the Securities Exchange Act. The Buyer has not received any written or, to the Knowledge of the Buyer, oral deficiency notice from the Stock Exchange relating to the continued listing requirements of the Buyer Public Securities.

Section 6.10       Investment Company; Emerging Growth Company. The Buyer is not an “investment company” within the meaning of the Investment Company Act of 1940. The Buyer constitutes an “emerging growth company” within the meaning of the JOBS Act.

Section 6.11        Business Activities.

(a)         Since its incorporation, other than as described in the Buyer SEC Document, the Buyer has not conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the Buyer Governing Documents, there is no Contract, commitment, or Order binding upon the Buyer or to which the Buyer is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Buyer or any acquisition of property by the Buyer or the conduct of business by the Buyer after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Buyer.

(b)         Except for this Agreement and the transactions contemplated hereby, the Buyer has no interests, rights, obligations or Liabilities with respect to, and the Buyer is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination. The Buyer has not, directly or indirectly (whether by merger, consolidation or otherwise), acquired, purchased, leased or licensed (or agreed to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof.

(c)        The Buyer has no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities expressly set forth in or reserved against in the balance sheet of the Buyer as of June 30, 2020 (the “Buyer Balance Sheet”); (ii) Liabilities arising under this Agreement, the Ancillary Agreements or the performance by the Buyer of its obligations hereunder or thereunder; (iii) Liabilities which have arisen after the date of the Buyer Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of or was caused by any breach of warranty or Contract, infringement or violation of Law); and (iv) Liabilities for fees, costs and expenses for advisors, vendors and Affiliates of the Buyer or the Sponsor, including with respect to legal, accounting or other advisors incurred by the Buyer in connection with the transactions contemplated hereby.

Section 6.12       Compliance with Laws. The Buyer is, and has been since April 28, 2020, in compliance in all material respects with all Laws applicable to the conduct of the Buyer and the Buyer has not received any written notices from any Governmental Entity or any other Person alleging a material violation of or noncompliance with any such Laws.

Section 6.13       Organization of Merger Subs. Each Merger Sub was formed solely for the purpose of engaging in the transactions contemplated hereby, other than entry into this Agreement, has not conducted any business activities, and has no assets or Liabilities other than those incident to its formation.

Section 6.14       Financing. The Buyer has delivered to the Company true, correct and complete copies of each of the Subscription Agreements entered into by the Buyer with the PIPE Investors, the NBOKS Side Letter and the Backstop Agreement. To the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Equity Financing Source set forth in the Subscription Agreements, the Forward Purchase Agreement and the Backstop Agreement, with respect to each Equity Financing Source, as of the Effective Date, the Subscription Agreements, the Backstop Agreement or Forward Purchase Agreement (as amended by the NBOKS Side Letter) (as applicable) are in full force and effect and have not been withdrawn or terminated, or otherwise amended or modified, and no withdrawal, termination, amendment or modification is contemplated by any party thereto. Each of the Subscription Agreements, the Backstop Agreement and the Forward Purchase Agreement (as amended by the NBOKS Side Letter) is a legal, valid and binding obligation of the Buyer and, to the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Equity Financing Source set forth in the Subscription Agreements, Forward Purchase Agreement and Backstop Agreement, each Equity Financing Source, and neither the execution or delivery by any party thereto, nor the performance of any party’s obligations under any such Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter) violates any Laws. The Subscription Agreements, the Forward Purchase Agreement (as amended by the NBOKS Side Letter) and the Backstop Agreement provide that the Company is a third-party beneficiary thereof and is entitled to enforce such agreement against the applicable Equity Financing Source, to the extent set forth therein. Other than the NBOKS Side Letter, there are no other agreements, side letters, or arrangements between the Buyer and any Equity Financing Source relating to any Subscription Agreement, the Forward Purchase Agreement (as amended by the NBOKS Side Letter) or the Backstop Agreement, and, as of the Effective Date, to Buyer’s Knowledge, there are no facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter) (other than, in the case of the Backstop Agreement, the Buyer Share Redemptions or other than as a result in a change of the Utilization Limit (as such term is defined therein, in accordance with the terms thereof)) not being satisfied, or the aggregate amount of all Subscription Amounts (as defined in the Subscription Agreements), the Forward Purchase Amount or the Backstop Amount not being available to the Buyer, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Buyer or, to the Knowledge of the Buyer, any Equity Financing Source party thereto, under any term or condition of any Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter) and, as of the Effective Date, to the Knowledge of the Buyer, no event has occurred or circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be likely to (i) make any of the statements by the Buyer or any Equity Financing Source party thereto set forth in the Subscription Agreements, the Backstop Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter) inaccurate in any material respect or (ii) subject to the satisfaction (or waiver by the Buyer Parties) of the conditions set forth in Section 11.1 and Section 11.2 of this Agreement, otherwise result in any portion of the financing pursuant to the Subscription Agreements, the Backstop Agreement (other than as a result in a change of the Utilization Limit (as such term is defined therein, in accordance with the terms thereof)) or Forward Purchase Agreement (as amended by the NBOKS Side Letter) not being available. The Subscription Agreements, the Backstop Agreement and the Forward Purchase Agreement (as amended by the NBOKS Side Letter) contain all of the conditions precedent to the obligations of the Equity Financing Sources to contribute to the Buyer such Equity Financing Source’s Subscription Amount (as defined in the Subscription Agreements), Backstop Amount or the Forward Purchase Amount, as applicable, set forth in such Equity Financing Source’s Subscription Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter) or the Backstop Agreement, as applicable, on the terms therein. No fees, consideration or other discounts are payable or have been agreed to by the Buyer to any Equity Financing Source in respect of its PIPE Investment or the contribution of the Forward Purchase Amount or the Backstop Amount, except as set forth in the Subscription Agreements, the Forward Purchase Agreement (as amended by the NBOKS Side Letter) and the Backstop Agreement, as applicable.

Article VII
COVENANTS RELATING TO THE CONDUCT OF THE BLOCKERS AND THE GROUP COMPANIES AND THE BUYER

Section 7.1         Interim Operating Covenants of the Blockers and the Group Companies. From and after the Effective Date until the earlier of the date this Agreement is terminated in accordance with ‎Article XII and the Closing Date (such period, the “Pre-Closing Period”):

(a)         each Blocker and the Company shall, and the Company shall cause the other Group Companies to, (i) conduct and operate their business in the Ordinary Course of Business and (ii) to maintain intact their respective businesses in all material respects and preserve their relationships with material customers, suppliers, distributors and others with whom such Blocker or Group Company has a material business relationship, except, in each case, (x) with the prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed); (y) as expressly required hereby; or (z) as set forth on Schedule ‎7.1(a); and

(b)        without limiting ‎Section 7.1(a), except (x) with the prior written consent of the Buyer (such consent not to be unreasonably withheld, conditioned or delayed); (y) as expressly required hereby; or (z) as set forth on Schedule ‎7.1(b), each Blocker and the Company shall, and the Company shall cause the other Group Companies not to:

(i)            amend or otherwise modify any of its Governing Documents;

(ii)            except as may be required by Law or GAAP, make any material change in the financial or tax accounting methods, principles or practices (or change an annual accounting period);

(iii)           make, change or revoke any material election relating to Taxes, enter into any agreement, settlement or compromise with any Taxing Authority relating to any material Tax matter, abandon or fail to diligently conduct any material audit, examination or other Proceeding in respect of a material Tax or material Tax Return, make any request for a private letter ruling, administrative relief, technical advice, change of any method of accounting or other similar request with a Taxing Authority, file any amended Tax Return, fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, file any Tax Return in a manner inconsistent with the past practices of the Group Companies unless required by applicable Law, fail to pay any material amount of Tax as it becomes due, consent to any extension or waiver of the statutory period of limitations applicable to any Tax or Tax Return, enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), adopt or change a method of accounting with respect to Taxes, change an accounting period with respect to Taxes, surrender any right to claim any refund of material Taxes, take any action, or fail to take any action, which action or failure to act prevents, impairs or impedes, or could reasonably be expected to prevent, impair or impede, the Intended Tax Treatment, or defer payment of any Taxes (including withholding Taxes) pursuant to Internal Revenue Service Notice 2020-65 or any related or similar order or declaration from any Governmental Entity (including without limitation the Presidential Memorandum, dated August 8, 2020, issued by the President of the United States);

(iv)          issue or sell, or authorize to issue or sell, any membership interests, shares of its capital stock or any other ownership interests, as applicable, other than in the case of the Company (x) pursuant to the exercise of Company Options outstanding as of the Effective Date or (y) the issuance of “rollover equity” in connection with a Permitted Acquisition in form and substance reasonably acceptable to the Buyer (and with the Buyer’s prior written consent (not to be unreasonably withheld, conditioned or delayed) with respect to the rights and obligations of any Person in receipt of such equity following the Closing) and entered into in accordance with the terms hereof, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any shares of its membership interests, capital stock or any other ownership interests, or amend the terms of (including the vesting of) any Company Options;

(v)           declare, set aside or pay any dividend or make any other distribution other than the payment of cash dividends or cash distributions prior to the Measurement Time from excess cash balances not needed for operations in the Ordinary Course of Business;

(vi)          split, combine, redeem or reclassify, or purchase or otherwise acquire, any membership interests, shares of its capital stock or any other ownership interests, as applicable;

(vii)         other than in connection with any Permitted Acquisition (and in such case, solely to the extent in form and quantum reasonably acceptable to the Buyer and entered into in accordance with the terms hereof) or in the Ordinary Course of Business pursuant to clause (a) of the definition thereof (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any Blocker Indebtedness or Company Indebtedness (other than under the Credit Agreement), as applicable; (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any Blocker Indebtedness or Company Indebtedness, as applicable;

(viii)        cancel or forgive any Indebtedness in excess of five hundred thousand dollars ($500,000) owed to the Blockers, the Company or any of the Company Subsidiaries, as applicable;

(ix)           commit to making or make or incur any capital commitment or capital expenditure (or series of capital commitments or capital expenditures), other than capital expenditures (x) in the Ordinary Course of Business as contemplated by the Group Companies’ capital expenditure budget set forth on Schedule ‎7.1(b)(x) or (y) in an amount not to exceed one million dollars ($1,000,000) individually or three million dollars ($3,000,000) in the aggregate;

(x)            (A) with respect to the Company or any other member of the Group Companies, enter into any material amendment of any Material Contract or Material Lease, enter into any Contract that if entered into prior to the Effective Date would be a Material Contract or Material Lease, in each case other than in the Ordinary Course of Business pursuant to clause (a) of the definition thereof or the entry into any purchase agreement or customary documentation ancillary thereto regarding a Permitted Acquisition on terms and conditions, and for a purchase price, reasonably acceptable to Buyer and entered into in accordance with the terms hereof, or voluntarily terminate any Material Contract or Material Lease, except for any termination at the end of the term of such Material Contract or Lease pursuant to the terms of such Material Contract or Material Lease, and (B) with respect to any Blocker, enter into any written amendment of any material Contract, enter into any Contract that if entered into prior to the Effective Date would be a Contract that is material to such Blocker, in each case other than in the Ordinary Course of Business pursuant to clause (a) of the definition thereof, or voluntarily terminate any Contract that is material to such Blocker, except for any termination at the end of the term of such material Contract or Lease pursuant to the terms of such material Contract;

(xi)           enter into, renew, modify or revise any Affiliated Transaction or Blocker Affiliated Transaction, as applicable, other than those that will be terminated at Closing;

(xii)          sell, lease, exclusively license, assign, transfer, permit to lapse, abandon, or otherwise dispose of any of its properties or assets that are, (A) with respect to the Company or any other member of the Group Companies, material to the businesses of the Group Companies, taken as a whole, including any material Owned Intellectual Property, except in the Ordinary Course of Business pursuant to clause (a) of the definition thereof, and (B) with respect to any Blocker, material to its business;

(xiii)         adopt or effect a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;

(xiv)         grant or otherwise create or consent to the creation of any Lien (other than a Permitted Lien) on any of its material assets or Leased Real Property;

(xv)         waive, release, assign, settle or compromise any Proceeding (whether civil, criminal, administrative or investigative) (w) involving payments (exclusive of attorney’s fees) in excess of five hundred thousand dollars ($500,000) in any single instance or in excess of one million dollars ($1,000,000) in the aggregate; (x) granting material injunctive or other equitable remedy; or (y) which imposes any material restrictions on the operations of any Blocker or Group Company;

(xvi)         make, increase, decrease, accelerate (with respect to funding, payment or vesting) or grant any base salary, base wages, bonus opportunity, equity or equity-based award or other compensation or employee benefits other than (A) as required pursuant to a Company Employee Benefit Plan as in effect on the Effective Date that has been provided to Buyer prior to the date hereof; (B) annual base compensation increases made in the Ordinary Course of Business pursuant to clause (a) of the definition thereof for employees or individual independent contractors who are eligible to earn an annual base compensation equal to or less than $200,000, or (C) entering into any Company Employee Benefit Plan with any employee or independent contractor hired, engaged or promoted by any of the Group Companies following the Effective Date in the Ordinary Course of Business pursuant to clause (a) of the definition thereof and who is eligible to earn an annual base compensation equal to or less than $200,000 to provide for cash compensation and benefits (other than equity or equity-based compensation and/or deferred compensation) for such individuals that are substantially similar to the cash compensation and benefits (other than equity or equity-based compensation and/or deferred compensation) made available to other similarly situated employees and service providers of the Group Companies;

(xvii)        pay or promise to pay, grant or fund, accelerate (with respect to payment or vesting) or announce the grant or award of any equity or equity-based incentive awards, retention, sale, change-in-control or other discretionary bonus, severance or similar compensation or benefits; in each case, other than as required pursuant to a Company Employee benefit Plan as in effect on the Effective Date.

(xviii)       establish, modify, amend (other than as required by applicable Law or as required for the annual insurance renewal for health and/or welfare benefits), terminate, enter into, commence participation in, or adopt any Company Employee Benefit Plan or any benefit or compensation plan, program, policy, agreement or arrangement that would be a Company Employee Benefit Plan if in effect on the Effective Date;

(xix)         hire, engage, furlough, temporarily lay off or terminate (other than for cause) any individual with annual base compensation in excess of two hundred thousand dollars ($200,000);

(xx)          negotiate, modify, extend, or enter into any CBA or recognize or certify any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Group Companies;

(xxi)         implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions that could implicate the WARN Act;

(xxii)        waive or release any non-competition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any current or former employee or independent contractor or enter into any agreement that restricts the ability of the Blockers or the Group Companies, as applicable, to engage or compete in any line of business in any respect material to any business of the Blockers or the Group Companies, as applicable;

(xxiii)       other than in connection with any Permitted Acquisitions, on terms and conditions reasonably satisfactory to the Buyer, buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than (A) inventory and supplies in the Ordinary Course of Business or (B) other assets in an amount not to exceed five million dollars ($5,000,000) individually or ten million dollars ($10,000,000) in the aggregate;

(xxiv)       enter into any new line of business;

(xxv)        make any material change to any of the cash management practices, including materially deviating from or materially altering any of its practices, policies or procedures in paying accounts payable or collecting accounts receivable; or

(xxvi)       agree or commit in writing to do any of the foregoing.

(c)         From the Measurement Time until the Closing, the Blockers and the Company shall not, and the Company shall cause the other Group Companies not to, use any Cash and Cash Equivalents to pay any Transaction Expenses, make any distributions, repay any Blocker Indebtedness or Company Indebtedness, as applicable, or make any payments in respect of Taxes or that may increase the amounts payable to the Company Equityholders or Blocker Owners at the Closing.

(d)         Nothing contained herein shall be deemed to give the Buyer or any Merger Sub, directly or indirectly, the right to control or direct the Company or any operations of any Blocker or any Group Company prior to the Closing.  Prior to the Closing, the Blockers and the Group Companies shall exercise, consistent with the terms and conditions hereof, control over their respective businesses and operations.

Section 7.2         Interim Operating Covenants of the Buyer.

(a)         During the Pre-Closing Period, except (x) with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed); (y) as expressly required hereby (including the Domestication) or (z) as set forth on Schedule ‎7.2(a), the Buyer shall not, and shall cause each of its Subsidiaries, including the other Buyer Parties not to:

(i)            amend or otherwise modify any of its Governing Documents or the Trust Agreement;

(ii)           withdraw any of the Trust Amount, other than as permitted by the Buyer Governing Documents or the Trust Agreement;

(iii)           other than in connection a Buyer Share Redemption, the Forward Purchase Agreement, the Sponsor Side Letter, the Backstop Agreement, a Permitted Equity Financing, the repayment of any working capital loan under Section 7.2(a)(vii) in Buyer Warrants, or the Subscription Agreements, issue or sell, or authorize to issue or sell, any Equity Interests, or issue or sell, or authorize to issue or sell, any securities convertible into or exchangeable for, or options, warrants or rights to purchase or subscribe for, or enter into any Contract with respect to the issuance or sale of, any Equity Interests of any Buyer Party;

(iv)          make, change or revoke any material election relating to Taxes or enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement);

(v)           other than in connection with a Buyer Share Redemption, declare, set aside or pay any dividend or make any other distribution or return of capital (whether in cash or in kind) to the equityholders of the Buyer;

(vi)          split, combine, redeem (other than a Buyer Share Redemption) or reclassify (other than a reclassification pursuant to the Domestication or a conversion of Buyer Class B Ordinary Shares into Buyer Class A Ordinary Shares pursuant to the Buyer Governing Documents) any of its Equity Interests;

(vii)         (x) incur, assume, guarantee or otherwise become liable or responsible for (whether directly, contingently or otherwise) any Indebtedness, other than Indebtedness incurred in order to finance working capital needs (including to pay amounts which would be treated as a Transaction Expense if unpaid as of the Closing Date and any ordinary course operating expenses), which Indebtedness permits or allows all or any portion of such Indebtedness to be converted into the number of Buyer Warrants not to exceed two million five hundred thousand dollars ($2,500,000) (with such Buyer Warrants issued at one dollar ($1.00) per Buyer Warrant and at an exercise price of eleven dollars and fifty cents ($11.50) per Buyer Warrant) or which may be otherwise repaid in cash, (y) make any loans, advances or capital contributions to, or investments in, any Person or (z) amend or modify any Indebtedness;

(viii)        commit to making or make or incur any capital commitment or capital expenditure (or series of capital commitments or capital expenditures);

(ix)           enter into any transaction or Contract with the Sponsor or any of its Affiliates for the payment of finder’s fees, consulting fees, monies in respect of any payment of a loan or other compensation paid by Buyer to the Sponsor, Buyer’s officers or directors, or any Affiliate of the Sponsor or Buyer’s officers, for services rendered prior to, or for any services rendered in connection with, the consummation of the transactions contemplated hereby;

(x)            waive, release, assign, settle or compromise any pending or threatened Proceeding, other than Proceedings which are not material to the Buyer and which do not relate to the transactions contemplated by this Agreement; or

(xi)           buy, purchase or otherwise acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material portion of assets, securities, properties, interests or businesses of any Person;

(xii)          enter into any new line of business; or

(xiii)         agree or commit in writing to do any of the foregoing.

(b)        Nothing contained herein shall be deemed to give the Blockers or any Group Company, directly or indirectly, the right to control or direct the Buyer prior to the Closing. Prior to the Closing, the Buyer shall exercise, consistent with the terms and conditions hereof, control over its business.

Article VIII
PRE-CLOSING AGREEMENTS

Section 8.1         Reasonable Best Efforts; Further Assurances. Subject to the terms and conditions set forth herein, and to applicable Laws, during the Pre-Closing Period, the Parties shall cooperate and use their respective reasonable best efforts to take, or cause to be taken, all appropriate action (including executing and delivering any documents, certificates, instruments and other papers that are necessary for the consummation of the transactions contemplated hereby), and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby and the Blockers and the Group Companies shall use reasonable best efforts, and the Buyer shall cooperate in all reasonable respects with the Group Companies, to solicit and obtain any consents of any Persons that may be required in connection with the transactions contemplated hereby or by the Ancillary Agreements prior to the Closing; provided, however, that other than any fees payable in connection with Notification and Report Forms required pursuant to the HSR Act, no Party or any of their Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required (unless such payment is required in accordance with the terms of the relevant Contract requiring such consent). Subject to the terms set forth herein, each Party shall take such further actions (including the execution and delivery of such further instruments and documents) as reasonably requested by any other Party to effect, consummate, confirm or evidence the transactions contemplated hereby and carry out the purposes of this Agreement.

Section 8.2         Trust & Closing Funding. Subject to the satisfaction or waiver of the conditions set forth in ‎Article XI (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice the Buyer shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and the Buyer Governing Documents, at the Closing, the Buyer shall (a) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) use its best efforts to cause the Trustee to pay as and when due all amounts payable to Buyer Shareholders who shall have validly elected to redeem their Buyer Class A Ordinary Shares pursuant to the Buyer Memorandum and Articles and use its best efforts to cause the Trustee to pay as and when due the Deferred Discount (as defined in the Trust Agreement) pursuant to the terms of the Trust Agreement, except to the extent that such Deferred Discount is waived, and pay as and when due all amounts payable pursuant to ‎Section 3.2(e).

Section 8.3         Status Preservation.

(a)         Listing. During the Pre-Closing Period prior to the Domestication, the Buyer shall use reasonable best efforts to ensure the Buyer Class A Ordinary Shares continue to be listed on the Stock Exchange. The Buyer shall use reasonable best efforts to cause the Buyer Class A Common Stock to be listed on the Stock Exchange.

(b)        Qualification as an Emerging Growth Company. The Buyer shall, at all times during the Pre-Closing Period use reasonable best efforts to (a) take all customary actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that in and of itself would cause the Buyer to not qualify as an “emerging growth company” within the meaning of the JOBS Act.

(c)         Public Filings. During the Pre-Closing Period, the Buyer will use reasonable best efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.

Section 8.4         EIP. Prior to the Closing Date, the Buyer shall approve and, subject to the approval of the Buyer’s shareholders as required under the Buyer Memorandum and Articles, adopt, a management incentive equity plan reasonably acceptable to the Buyer and the Equityholder Representative to be effective from and after the Closing (the “EIP”).

Section 8.5         Confidential Information. During the Pre-Closing Period, each Party shall be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein, and such provisions are hereby incorporated herein by reference. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party hereby agrees, that during the Pre-Closing Period, except in connection with or support of the transactions contemplated hereby or at the request of the Buyer or any of its Affiliates or its or their representatives, while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliate or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of the Buyer, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing.

Section 8.6         Access to Information. During the Pre-Closing Period, upon reasonable prior notice, the Blockers and the Company shall, and the Company shall cause the Company Subsidiaries to, afford the representatives of the Buyer reasonable access, during normal business hours, to the properties, books and records of the Blockers and the Group Companies, as applicable, and furnish to the representatives of the Buyer such additional financial and operating data and other information regarding the business of the Blockers and the Group Companies as the Buyer or its representatives may from time to time reasonably request for purposes of consummating the transactions contemplated hereby and preparing to operate the business of the Blockers and the Group Companies following the Closing; provided, nothing herein shall require the Blockers or any Group Company to provide access to, or to disclose any information to, the Buyer Parties or any of their representatives if such access or disclosure, in the good faith reasonable belief of a Blocker or the Company, as applicable, (a) would waive any legal privilege or (b) would be in violation of applicable Laws or regulations of any Governmental Entity (including the HSR Act).

Section 8.7         Notification of Certain Matters. During the Pre-Closing Period, each Party shall disclose to the other Parties in writing any development, fact or circumstance of which such Party has Knowledge, arising before or after the Effective Date, that would cause or would reasonably be expected to result in the failure of the conditions set forth in ‎Section 11.1 or ‎Section 11.2 to be satisfied.

Section 8.8         Antitrust Laws.

(a)         Each of the Parties will (i) cause the Notification and Report Forms required pursuant to the HSR Act with respect to the transactions contemplated hereby to be filed no later than twenty (20) Business Days after the Effective Date; (ii) request early termination of the waiting period relating to such HSR Act filings; (iii) make an appropriate response to any requests for additional information and documentary material made by a Governmental Entity pursuant to the HSR Act; and (iv) otherwise use its reasonable best efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the transactions contemplated as soon as practicable. The Parties shall use reasonable best efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the above filings, applications or notifications. Each Party shall promptly inform the other Parties of any material communication between itself (including its representatives) and any Governmental Entity regarding any of the transactions contemplated hereby. All filing fees required by applicable Law to any Governmental Entity in order to obtain any such approvals, consents, or Orders shall be Transaction Expenses.

(b)        The Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby and, to the extent permissible, promptly furnish the other with copies of notices or other communications between any Party (including their respective Affiliates and representatives), as the case may be, and any third party and/or Governmental Entity with respect to such transactions. Each Party shall give the other Party and its counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Party in connection with, any proposed material written communication to any Governmental Entity relating to the transactions contemplated hereby, and to the extent reasonably practicable, give the other party the opportunity to attend and participate in any substantive meeting, conference or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated hereby.

(c)         Each Party shall use reasonable best efforts to resolve objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated hereby under the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign statutes, rules, regulations, Orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or constituting anticompetitive conduct (collectively, the “Antitrust Laws”). Subject to the other terms of this ‎Section 8.8(c), each Party shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the Effective Date.

Section 8.9         Requisite Member Consent; Requisite Blocker Consent. Within one (1) day of the Effective Date, (a) the Company shall deliver to the Buyer evidence of the Company Written Consent and (b) each Blocker shall deliver to the Buyer evidence of such Blocker’s Blocker Written Consent. The Company shall use reasonable best efforts to promptly following the date hereof and prior to the Closing deliver to the Buyer the approval by each other holder of Company Units of the adoption hereof with respect to all such Company Units owned beneficially and of record by such holder of Company Units.

Section 8.10       Communications; Press Release; SEC Filings.

(a)         None of the Parties shall and each Party shall cause its Affiliates not to, make or issue any public release or public announcement concerning the transactions contemplated hereby without the prior written consent of the Buyer, in the case of the Company, the Blockers and the Equityholder Representative, or the prior written consent of the Company, in the case of the Buyer or the Merger Subs, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed; provided, however, that (i) each Party may make any such announcement which it in good faith believes is necessary or advisable in connection with any required Law, which is required by the requirements of any national securities exchange applicable to such Party (including in connection with the exercise of the fiduciary duties of the Buyer Board or that is contemplated hereby) and (ii) each Company Unitholder or Affiliate of a Party that is a private equity, venture capital or investment fund may make customary disclosures to its existing or potential financing sources, including direct or indirect limited partners and members (whether current or prospective) solely to the extent that such disclosures do not constitute material nonpublic information and are subject to customary obligations of confidentiality.

(b)        As promptly as practicable following the Effective Date, the Buyer shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement and the Subscription Agreements, and make public all material nonpublic information provided to potential PIPE Investors prior to the Effective Date (the “Signing Form 8-K”), and the Buyer and the Company shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). Prior to filing with the SEC, the Buyer will make available to the Company and the Equityholder Representative a draft of the Signing Form 8-K and will provide the Company and the Equityholder Representative with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith.

(c)         As promptly as reasonably practicable after the date of this Agreement (and in any event on or prior to the tenth (10th) Business Day following the delivery of the financial statements pursuant to clauses (i) and (ii) of Section 8.11(h)), the Buyer shall, in consultation with the Company, prepare and the Buyer shall file with the SEC a Form S-4, which shall comply as to form, in all material respects, with, as applicable, the provisions of the Securities Act and the Securities Exchange Act and the rules and regulations promulgated thereunder, for the purpose of soliciting proxies from the Buyer Shareholders to vote at the Buyer Shareholder Meeting in favor of the Buyer Shareholder Voting Matters. The Buyer shall file an amendment to the Form S-4 containing a definitive proxy statement/final prospectus with the SEC and cause the definitive proxy statement/final prospectus to be mailed to its shareholders of record, as of the record date to be established by the Buyer Board that is in existence immediately prior to the Domestication, as promptly as practicable after, but in any event within five (5) Business Days of, the SEC declaring the Form S-4 effective.

(d)         Prior to filing with the SEC, the Buyer will make available to the Company and the Equityholder Representative drafts of the Form S-4 and any other documents to be filed with the SEC, both preliminary and final, and drafts of any amendment or supplement to the Form S-4 or such other document and will provide the Company and the Equityholder Representative with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. The Buyer will advise the Company and the Equityholder Representative promptly after it receives notice thereof, of (i) the time when the Form S-4 has been filed; (ii) receipt of oral or written notification of the completion of the review by the SEC; (iii) the filing of any supplement or amendment to the Form S-4; (iv) any request by the SEC for amendment of the Form S-4; (v) any comments, written or oral, from the SEC relating to the Form S-4 and responses thereto; and (vi) requests by the SEC for additional information in connection with the Form S-4, and shall consult with the Company regarding, and supply the Company with copies of, all material correspondence between the Buyer or any of its representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Form S-4. In consultation with the Company, the Buyer shall promptly respond to any comments of the SEC on the Form S-4, and the Parties shall use their respective reasonable best efforts to have the Form S-4 declared effective by the SEC under the Securities Act and Securities Exchange Act as soon after filing as practicable.

(e)         If, at any time prior to the Buyer Shareholder Meeting, any Party discovers or becomes aware of any information that should be set forth in an amendment or supplement to the Form S-4, so that the Form S-4 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall inform the other Parties hereto and, subject to Section 8.11(d), the Buyer shall promptly file (and the Company shall cooperate in preparing, to the extent necessary) an appropriate amendment or supplement describing such information with the SEC and, to the extent required by Law, transmit to the Buyer Shareholders such amendment or supplement to the Form S-4 containing such information.

(f)         The Parties acknowledge that a substantial portion of the Form S-4 and certain other forms, reports and other filings required to be made by the Buyer under the Securities Act and Securities Exchange Act in connection with the transactions contemplated hereby (collectively, “Additional Buyer Filings”) shall include disclosure regarding the Blockers and the Group Companies and the business of the Blockers and the Group Companies and the management, operations and financial condition of the Blockers and the Group Companies. Accordingly, the Blockers and the Company agree to, and the Company agrees to cause the Group Companies to, as promptly as reasonably practicable, provide the Buyer with all information concerning the Blocker Owners, the Company Equityholders, the Blockers, the Company and the Group Companies, and their respective business, management, operations and financial condition, in each case, that is reasonably required to be included in the Form S-4, Additional Buyer Filings or any other Buyer SEC Filing. The Blockers and the Company shall make, and the Company shall cause the Group Companies to, make, and shall cause their Affiliates, directors, officers, managers and employees to make, available to the Buyer and its counsel, auditors and other representatives in connection with the drafting of the Form S-4, Additional Buyer Filings and any other Buyer SEC Filing and responding in a timely manner to comments thereto from the SEC all information concerning the Blockers and the Group Companies, their respective businesses, management, operations and financial condition, in each case, that is reasonably required to be included in the Form S-4, such Additional Buyer Filing or other Buyer SEC Filing. The Buyer shall be permitted to make all necessary filings with respect to the transactions contemplated hereby under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, shall provide the Company and the Equityholder Representative with a reasonable opportunity to comment on drafts of any such filings and shall consider such comments in good faith, and the Blockers and the Company shall reasonably cooperate in connection therewith.

(g)        At least five (5) days prior to Closing, the Parties shall mutually begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated hereby pursuant to Form 8-K (the “Closing Form 8-K”). Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated hereby (“Closing Press Release”). Concurrently with the Closing, the Buyer shall distribute the Closing Press Release, and as soon as practicable thereafter, file the Closing Form 8-K with the SEC.

(h)         The Company shall provide to the Buyer as promptly as practicable after the Effective Date (i) audited consolidated balance sheet of E2open and its Subsidiaries as of February 29, 2020 and February 28, 2019, and the related audited consolidated statements of comprehensive loss, cash flows and members equity for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of E2open’s independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”); (ii) unaudited consolidated financial statements of E2open and its Subsidiaries including consolidated balance sheets, consolidated statements of comprehensive loss, cash flows and members equity as of and for the six (6) month period ended August 31, 2020 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the Securities Exchange Act and reviewed by E2open’s independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants; (iii) all other audited and unaudited financial statements of the Group Companies and any company or business units acquired by the Group Companies, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Form S-4 and/or the Closing Form 8-K (including pro forma financial information); (iv) all selected financial data of the Group Companies required by Item 301 of Regulation S-K of the Securities Exchange Act, as necessary for inclusion in the Form S-4 and Closing Form 8-K; and (v) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the Securities Exchange Act (as if the Group Companies were subject thereto) with respect to the periods described in clauses (i), (ii) and (iii) above, as necessary for inclusion in the Form S-4 and Closing Form 8-K (including pro forma financial information).

Section 8.11       Buyer Shareholder Meeting. The Buyer, acting through the Buyer Board, shall take all actions in accordance with applicable Law, the Buyer’s Governing Documents and the rules of the Stock Exchange to duly call, give notice of, convene and promptly hold the Buyer Shareholder Meeting for the purpose of considering and voting upon the Buyer Shareholder Voting Matters, which meeting shall be held not more than twenty-five (25) days after the date on which the Buyer completes the mailing of the definitive proxy statement/final prospectus to the Buyer Shareholders pursuant to Section 8.10(c). The Buyer Board shall recommend adoption of this Agreement and approval of the Buyer Shareholder Voting Matters and include such recommendation in the Form S-4, and, unless this Agreement has been duly terminated in accordance with the terms herein and except as required by applicable Law upon the advice of outside counsel, neither the Buyer Board nor any committee thereof shall withdraw or modify, or publicly propose or resolve to withdraw or modify in a manner adverse to the Company or the Blockers, the recommendation of the Buyer Board that the Buyer Shareholders vote in favor of the approval of the Buyer Shareholder Voting Matters. Unless this Agreement has been duly terminated in accordance with the terms herein, the Buyer shall take all reasonable lawful action to solicit from the Buyer Shareholders proxies in favor of the proposal to adopt this Agreement and approve the Required Buyer Shareholder Voting Matters and shall take all other action reasonably necessary or advisable to secure the vote or consent of the Buyer Shareholders that are required by the rules of the Stock Exchange and the Cayman Island Companies Law (2020 Revision). Notwithstanding anything to the contrary contained in this Agreement, the Buyer may (and in the case of the following clause (ii), at the reasonable request of the Company, shall) adjourn or postpone the Buyer Shareholder Meeting: (i) to the extent necessary to ensure that any legally required supplement or amendment to the Form S-4 is provided to the Buyer Shareholders and (ii), in each case, for one period of no longer than 15 calendar days, (x) if as of the time for which the Buyer Shareholder Meeting is originally scheduled (as set forth in the Form S-4), there are insufficient voting Equity Interests of the Buyer represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Buyer Shareholder Meeting or (y) in order to solicit additional proxies from the Buyer Shareholders for purposes of obtaining approval of the Required Buyer Shareholder Voting Matters. The Buyer hereby acknowledges that, pursuant to the that certain letter agreement, dated as of April 28, 2020, delivered by the Sponsor and the other parties thereto to Goldman Sachs & Co. LLC and BofA Securities, Inc. (the “Support Agreement”), each of the Buyer Shareholders party thereto, including the Sponsor, has agreed to vote all of the Buyer Equity Interests held by such shareholder at the Buyer Shareholder Meeting in favor of the Buyer Shareholder Voting Matters, as an initial Business Combination, and the Buyer shall not amend in any manner adverse to the Company or the Blockers, or terminate the Support Agreement, without the prior written consent of the Company.

Section 8.12       Expenses. Except as otherwise provided herein, each Party shall be solely liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) incurred by such Party or its Affiliates in connection with the negotiation and execution of this Agreement and the Ancillary Agreements, the performance of such Party’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby. To the extent there are any Transaction Expenses that become due and payable following the Closing or which are not paid at the Closing, such Transaction Expenses shall be borne by the Surviving Company following the Closing.

Section 8.13       Financing Cooperation; Etc.

(a)         Obligations of the Company.

(i)            Prior to the Closing, the Company shall use reasonable best efforts to, and shall use reasonable best efforts to cause its Subsidiaries and controlled Affiliates to use reasonable best efforts to, and shall cause their respective officers, employees, advisors and other representatives to use its reasonable best efforts to, take, or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, customary or advisable to arrange and obtain the debt financing (the “Debt Financing” and the financing sources in respect thereof (including, without limitation, each lender, each agent, each arranger and each other Person that has committed to provide or otherwise entered into agreements in connection with the Debt Financing or any Alternative Financing, including, without limitation, any commitment letters, engagement letters, credit agreements, loan agreements or indentures relating thereto (and any joinders or amendments thereof), together with each Affiliate thereof and each former, current and future officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative of each lender, other Person or Affiliate, and together with the heirs executors, successors and assigns of any of the foregoing), the “Debt Financing Sources”) on the terms and conditions described in the executed debt commitment letter and related fee letter delivered to the Buyer on the date hereof (including any “market flex” provisions applicable thereto), which terms and conditions shall be acceptable to the Buyer (such debt commitment letter, including all exhibits, schedules and annexes thereto, collectively, the “Commitment Letter”), or on such other terms acceptable to Buyer, including, without limitation, using reasonable best efforts to (A) comply with and maintain in full force and effect the Commitment Letter; (B) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions described in the Commitment Letter (including any “market flex” provisions applicable thereto) or on other terms that are acceptable to the Buyer; (C) satisfy on a timely basis (but in any event on or prior to the Closing Date) or obtain a waiver of all conditions applicable to the Company in the Commitment Letter and the definitive agreements for the Debt Financing that are within its control; and (D) upon the satisfaction or waiver of the conditions to the Buyer’s obligations to consummate the transactions contemplated by this Agreement, enforce its rights under the Commitment Letter in the event of a breach by any Persons providing the Debt Financing.

(ii)            The Company shall not permit any amendment, supplement or other modification to be made to, any replacement of or any waiver of any provision or remedy under the Commitment Letter or any definitive agreement with respect to the Debt Financing that would be adverse to the interests of the Company or the Buyer without the prior written consent of the Buyer (provided, however, for the avoidance of doubt, that, subject to compliance with the other provisions of this Section 8.13, the Company may amend the definitive agreement with respect to the Debt Financing to (1) implement any “market flex” provisions applicable thereto or (2) add lenders, lead arrangers or any person with similar roles or titles who had not executed the Commitment Letter as of the date of this Agreement). In the event of any proposed amendment, supplement or other modification to be made to, any replacement of or any waiver of any provision or remedy under, the Commitment Letter (whether or not adverse to the interests of the Company or the Buyer), the Company shall, and shall cause its Subsidiaries and controlled Affiliates, and shall cause their respective officers, employees, advisors and other representatives to reasonably cooperate and consult with the Buyer, its Affiliates and their respective officers, employees, advisors and other representatives and shall consider in good faith any comments that Buyer, its Affiliates and their respective officers, employees, advisors and other representatives may have with respect thereto.

(iii)           The Company shall keep the Buyer informed on a reasonably current basis and in reasonable detail with respect to all material activity and developments concerning the status of its efforts to arrange and obtain the Debt Financing. Without limiting the generality of the foregoing, the Company shall (1) provide the Buyer with drafts and substantially final versions of the definitive material documents related to the Debt Financing and (2) notify the Buyer promptly, and in any event within three (3) Business Days, (x) of any actual or threatened in writing breach or default by any party to the Commitment Letter or definitive documents related to the Debt Financing by the Company or, in the case of any other person, within three (3) Business Days of the date on which the Company becomes aware of such breach or default, (y) of the receipt by the Company of any written notice or other written communication (other than ordinary course negotiations of the definitive agreements with respect to the Debt Financing) from any financing source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letter or any definitive document related to the Debt Financing of any provisions of the Commitment Letter or any definitive document related to the Debt Financing or (z) if for any reason the Company no longer believes in good faith that it will be able to obtain all or any portion of the Debt Financing contemplated by the Commitment Letter and the related fee letter on the terms described therein. The Company shall promptly provide to the Buyer any information relating to any circumstance referred to in subclauses (x), (y) or (z) of the immediately preceding sentence.

(iv)          In the event that all or any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “market flex” provisions applicable thereto) contemplated in the Commitment Letter, the Company shall promptly notify the Buyer thereof and shall use its commercially reasonable efforts to (A) arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing arrangements, from the same or from alternative sources, reasonably acceptable to the Buyer (an “Alternative Financing”) and (B) obtain a debt commitment letter with respect to such Alternative Financing, including any related fee letters, with terms and conditions (including any “market flex” provisions applicable thereto) not less favorable to the Company and the Buyer, when taken as a whole, to the terms and conditions set forth in the Commitment Letter, or such other terms reasonably acceptable to the Buyer (collectively, including all exhibits, schedules, amendments, supplements, modifications and annexes thereto, the “New Commitment Letter”).

(v)           Upon any amendment, supplement, other modification or replacement of, or waiver under, the Commitment Letter, or any entry into the New Commitment Letter or other documentation with respect to any Alternative Financing, the Company shall deliver a true, complete and correct copy thereof to the Buyer. References to “Debt Financing” shall include the financing contemplated by the Commitment Letter as so amended, supplemented or otherwise modified, waiver or replaced in accordance with this Section 8.13(a), and references to “Commitment Letter” shall include such documents so amended, supplemented or otherwise modified, waiver or replaced in accordance with this Section 8.13(a).

(vi)          In the event the Company elects to seek the Lender Consent, it shall promptly engage with the Buyer in respect of the proposed terms thereof and shall consider in good faith all comments made by Buyer with respect thereto.

(b)        Obligations of the Buyer. Prior to the Closing, the Buyer shall use reasonable best efforts to, and shall use reasonable best efforts to cause its Subsidiaries (including each other Buyer Party) to use reasonable best efforts to, and shall cause their respective officers, employees, advisors and other representatives to use its reasonable best efforts to, provide to the Group Companies all cooperation that is reasonably requested by the Company in connection with the arrangement, syndication and consummation of any Debt Financing or any Alternative Financing, as reasonably determined by the Company in good faith, including using reasonable best efforts to: (i) furnish, at least three (3) Business Days before Closing, all documentation and other information reasonably requested by the Debt Financing Sources or alternative sources, as applicable, or required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act (including, if the Buyer or its Subsidiaries and controlled Affiliates (including each other Buyer Party) qualify as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification), in each case to the extent requested at least nine (9) days prior to Closing and (ii) cooperate in satisfying the conditions precedent set forth in the Commitment Letter or the New Commitment Letter (or related documents) or any definitive document that the Buyer has had the opportunity to participate in the negotiation of, in each case, relating to the Debt Financing or the Alternative Financing, as applicable, to the extent the satisfaction of such condition requires the cooperation of, or is within the control of, the Buyer or its Subsidiaries and controlled Affiliates (including each other Buyer Party).

(c)         No Recourse. Notwithstanding anything to the contrary contained herein, the Buyer (on behalf of itself and its Affiliates and each officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof) (i) hereby waives any claims or rights against any Debt Financing Source relating to or arising out of this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (ii) hereby agrees not to bring or support any suit, action or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and (iii) hereby agrees to cause any suit, action or proceeding asserted against any Debt Financing Source by or on behalf of the Buyer or any of its Affiliates or any officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby to be dismissed or otherwise terminated. In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged and agreed that no Debt Financing Source shall have any liability for any claims or damages to the Buyer in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby. For the avoidance of doubt, this Section 8.13(c) does not limit or affect any rights or remedies that the Company or any of its Subsidiaries may have against the parties to the Commitment Letter pursuant to the terms and conditions of the Commitment Letter.

Section 8.14       Directors and Officers.

(a)         From and after the Effective Time, the Buyer shall cause the Group Companies to indemnify and hold harmless (including through reimbursement of expenses and exculpation) each Person that prior to the Closing served as a director or officer of any Group Company or who, at the request of any Group Company, served as a director or officer of another Person (collectively, with such Person’s heirs, executors or administrators, the “Indemnified Persons”) from and against any penalties, costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Proceeding arising out of or pertaining to circumstances, facts or events that occurred on or before the Effective Time, to the fullest extent permitted under applicable Law, the Governing Documents in effect as of the Effective Date and any indemnification agreement between any Group Company and any Indemnified Person in effect as of the Effective Date (“D&O Provisions”) and acknowledges and agrees such D&O Provisions are rights of Contract. Without limiting the foregoing, the Buyer shall cause each of the Group Companies to (i) maintain, for a period of six (6) years following the Closing Date, provisions in its Governing Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors/managers that are no less favorable to the Indemnified Persons than the D&O Provisions in effect as of the Effective Date, and not amend, repeal or otherwise modify such provisions in any respect that would affect in any manner the Indemnified Persons’ rights, or any Group Company’s obligations, thereunder.

(b)        Tail Policy.

(i)             For a period of six (6) years from and after the Closing Date, the Buyer shall purchase and maintain in effect policies of directors’ and officers’ liability insurance covering the Indemnified Persons and the Buyer with respect to claims arising from facts or events that occurred on or before the Closing and with substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy.

(ii)           At or prior to the Closing Date, the Company shall purchase and maintain in effect for a period of six (6) years thereafter, “run-off” coverage as provided by any Group Company’s and the Buyer’s fiduciary policies, in each case, covering those Persons who are covered on the Effective Date by such policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any Group Company’s or the Buyer’s existing policies (the policies contemplated by the foregoing clauses (i) and (ii), collectively, the “Tail Policy”); provided that in no event shall the Buyer be required to expend on the premium thereof in excess of three hundred percent (300%) of the annual premium currently payable by the Company with respect to such current policy (the “Premium Cap”); provided, further, that if such minimum coverage under any such Tail Policy is or becomes not available at the Premium Cap, then any such Tail Policy shall contain the maximum coverage available at the Premium Cap. No claims made under or in respect of such Tail Policy related to any fiduciary or employee of any Group Company shall be settled without the prior written consent of the Company. The Indemnified Persons are intended third party beneficiaries of this Section 8.15.

Section 8.15       Subscription Agreements; Forward Purchase Agreement; Permitted Financing; Backstop Agreement; Redemptions.

(a)         Subscription Agreements. The Buyer may not modify or waive, or provide consent to modify or waive (including consent to termination, to the extent required), any provisions of a Subscription Agreement or any remedy under any Subscription Agreement, in each case, without the prior written consent of the Company; provided, that any modification or waiver that is solely ministerial in nature and does not affect any economic or any other material term (including any conditions to closing) of a Subscription Agreement shall not require the prior written consent of the Company. If the Buyer is required to consummate the Closing hereunder, the Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and subject to the conditions described therein, including maintaining in effect the Subscription Agreements and to: (i) satisfy on a timely basis all conditions and covenants applicable to the Buyer in the Subscription Agreements and otherwise comply with its obligations thereunder, (ii) if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, consummate the transactions contemplated by the Subscription Agreements at or prior to the Closing; (iii) deliver notices to counterparties to the Subscription Agreements as required by and in the manner set forth in the Subscription Agreements in order to cause timely funding in advance of the Closing; and (iv) without limiting the Company’s rights to enforce the Subscription Agreements, enforce the Buyer’s rights under the Subscription Agreements, subject to all provisions thereof, if all conditions in the Subscription Agreements (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied) have been satisfied, to cause the applicable Equity Financing Sources fund the amounts set forth in the Subscription Agreements in accordance with their terms.

(b)         Forward Purchase Agreement; NBOKS Side Letter. Unless otherwise approved in writing by the Company, the Buyer shall not (i) (A) permit any amendment or modification to be made to, (B) waive (in whole or in part) or (C) provide consent to modify or waive (including consent to termination, to the extent required), any provision or remedy under the Forward Purchase Agreement or the NBOKS Side Letter or (ii) permit any assignment of the Forward Purchase Agreement by NBOKS, other than assignments to Affiliates (provided that, notwithstanding any such assignment to an Affiliate, NBOKS shall remain liable under the Forward Purchase Agreement unless and until the Forward Purchase Amount is actually received by the Buyer). To the extent the Buyer is required to consummate the Closing hereunder, the Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Forward Purchase Agreement, as amended by the NBOKS Side Letter, at the Closing on the terms and subject to the conditions in the Forward Purchase Agreement, as amended by the NBOKS Side Letter, including maintaining in effect the Forward Purchase Agreement, as amended by the NBOKS Side Letter, and to: (i) satisfy on a timely basis all conditions and covenants applicable to the Buyer in the Forward Purchase Agreement, as amended by the NBOKS Side Letter, and otherwise comply with its obligations thereunder, (ii) if all conditions in the Forward Purchase Agreement, as amended by the NBOKS Side Letter (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied), have been satisfied, consummate the transactions contemplated by the Forward Purchase Agreement at or prior to the Closing; (iii) deliver notices to counterparties to the Forward Purchase Agreement, as amended by the NBOKS Side Letter, (if any) as required by and in the manner set forth in the Forward Purchase Agreement, as amended by the NBOKS Side Letter in order to cause timely funding in advance of the Closing; and (iv) enforce the Buyer’s rights under the Forward Purchase Agreement, as amended by the NBOKS Side Letter, subject to the provisions thereof, if all conditions in the Forward Purchase Agreement, as amended by the NBOKS Side Letter (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions are then capable of being satisfied), have been satisfied, to cause NBOKS to fund the amount set forth in the Forward Purchase Agreement in accordance with its terms, as amended by the NBOKS Side Letter.

(c)            Permitted Equity Financing.

(i)            During the Pre-Closing Period, the Buyer may execute Permitted Equity Subscription Agreements that would constitute a Permitted Equity Financing; provided that, without the prior written consent of the Company, (i) each Permitted Equity Subscription Agreement shall be in substantially the form of the Subscription Agreement, (ii) no such Permitted Equity Subscription Agreement shall provide for a purchase price of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) at a price per share of less than ten dollars ($10.00) per share (including of any discounts, rebates, equity kicker or promote), (iii) all the Permitted Equity Subscription Agreements shall not in the aggregate provide for the issuance of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) in exchange for cash proceeds from all Permitted Equity Financings (the “Permitted Equity Financing Proceeds”) in excess of two hundred million dollars ($200,000,000), and (iv) no such Permitted Equity Financing Subscription Agreement shall provide for the issuance of any security other than Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication), including Buyer Warrants.

(ii)           Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 12.1, the Company agrees, and shall cause the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate, at Buyer’s sole cost and expense (which expense shall be treated as a Transaction Expense hereunder), in connection with the arrangement of any Permitted Equity Financing as may be reasonably requested by the Buyer, including by (i) upon reasonable prior notice and during normal business hours, participating in meetings, calls, drafting sessions, presentations, and due diligence sessions (including accounting due diligence sessions) and sessions with prospective investors at mutually agreeable times and locations and upon reasonable advance notice (including the participation in any relevant “roadshow”), (ii) reasonably assisting with the preparation of customary materials, (iii) providing the Financial Statements and such other financial information regarding the Group Companies readily available to the Company as is reasonably requested in connection therewith, subject to confidentiality obligations acceptable to the Company and (iv) otherwise reasonably cooperating in the Buyer’s efforts to obtain Permitted Equity Financing; provided, that (A) none of (x) the Company Equityholders, the Blockers, the Company, any other member of the Group Companies or any of their respective Affiliates, officers, directors, representatives or agents shall be required to incur any Liability in respect of the Permitted Equity Financing or any assistance provided in connection therewith, unless and solely to the extent such Liability is treated as a Transaction Expense, (B) nothing in this Section 8.15(c) shall require such cooperation to the extent it could unreasonably interfere with the business of any Group Company, or conflict with or violate any applicable Law or Contract, or require any Company Equityholder, Blocker, or Group Company to breach, waive or amend any terms of this Agreement, and (C) no Company Equityholder, Blocker or any of their respective Affiliates or representatives or agents shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Permitted Equity Financing.

(iii)          At the Closing, the Buyer shall be permitted to consummate the Permitted Equity Financing, and issue the equity contemplated thereunder, in accordance with the terms and conditions of the Permitted Equity Subscription Agreements.

(d)            Backstop of Redemptions. In the event of any Buyer Share Redemptions requiring payments from the Trust Account, the Buyer shall (i) first, exercise its rights to consummate the Permitted Equity Financing in accordance with the terms and conditions of the Permitted Equity Subscription Agreements and apply the Permitted Equity Financing Proceeds to fund such Buyer Share Redemptions, or if such Buyer Share Redemptions are funded from the Trust Amount, to fund the payment obligations of the Buyer in accordance with Article III hereof (including as Available Closing Date Equity), and (ii) solely to the extent the amount of Buyer Share Redemptions requiring payments from the Trust Account is greater than the Permitted Equity Financing Proceeds, concurrently therewith, exercise its rights under the Backstop Agreement, subject to the terms and conditions thereof, to cause NBOKS to subscribe for additional shares of Buyer Class A Common Stock in an aggregate subscription amount equal to (x) $300,000,000 less (y) the Permitted Equity Financing Proceeds actually funded at Closing, or such lesser amount which is then available to Buyer under the Backstop Agreement in accordance with its terms. To the extent that the payments required to fund the Buyer Share Redemptions exceed $300,000,000 ((plus by the amount by which Available Closing Date Equity is less than the Minimum Cash Amount in the event that the Company elects to waive the condition set forth in Section 11.3(c) (such excess, the “Unfunded Redemption Amount”)), such Unfunded Redemption Amount shall reduce cash proceeds to the Company Equityholders as set forth herein. The Buyer shall not modify or waive any provision of the Backstop Agreement in any manner adverse to Buyer’s rights thereunder without the prior written consent of the Company.

Section 8.16          Affiliate Obligations. On or before the Closing Date, except for this Agreement, the Elliott Blocker Notes and any Ancillary Agreements, (i) each Blocker shall take all actions necessary to cause all Liabilities and obligations of such Blocker under any Blocker Affiliated Transaction to be terminated in full without any further force and effect and without any cost to or other Liability to or obligations of such Blocker or the Buyer and (ii) the Company shall take all actions necessary to cause all Liabilities and obligations of the Group Companies under any Affiliated Transaction to be terminated in full without any further force and effect and without any cost to or other Liability to or obligations of any Group Company or the Buyer.

Section 8.17          280G.  Prior to the Closing, the Company shall use commercially reasonable efforts to (i) obtain an executed waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. The Company shall forward to the Buyer at least seven (7) days prior to distribution to the intended recipients, copies of all documents prepared by the Company in connection with this ‎Section 8.17 (including supporting analysis and calculations, form of waiver agreement, equityholder consent and disclosure statement) for the Buyer’s review and comment, and the Company shall incorporate all reasonable comments received from the Buyer on such documents at least two (2) days prior to the distribution to the intended recipients. Prior to the Closing, the Company shall deliver to the Buyer evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Benefits, such that if such shareholder approval is not obtained, no portion of the Waived 280G Benefits shall be paid, payable, received or retained.

Section 8.18         No Buyer Stock Transactions. During the Pre-Closing Period, except as otherwise contemplated hereby, neither the Company nor any of its controlled Affiliates, directly or indirectly, shall engage in any transactions involving the securities of the Buyer without the prior written consent of the Buyer.

Section 8.19         Domestication.  Subject to receipt of the Required Vote, prior to the Closing, the Buyer shall cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, in form and substance reasonably acceptable to the Buyer and the Company, together with the Buyer Certificate of Incorporation, in each case, in accordance with the provisions thereof and the DGCL, (b) completing and making and procuring all those filings required to be made with the Registrar of Companies of the Cayman Islands under the Cayman Islands Companies Law (2020 Revision) in connection with the Domestication, and (c) obtaining a certificate of de-registration from the Registrar of Companies of the Cayman Islands and the Buyer shall complete and make all filings required to be made with the SEC and the Stock Exchange to list Buyer Class A Common Stock on the Stock Exchange. Immediately prior to the Closing, the Buyer shall adopt the Buyer Bylaws, in substantially the form attached hereto as Exhibit D, as its bylaws until thereafter amended in accordance with the provisions thereof, the Buyer Certificate of Incorporation and the DGCL. In accordance with applicable Law, the Domestication shall provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any Buyer Shareholder, (i) each Buyer Class A Ordinary Share outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Buyer Class A Common Stock and (ii) each Buyer Class B Ordinary Share outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Buyer Class A Common Stock. The Equityholder Representative and the Company shall reasonably cooperate with the Buyer with respect to the Domestication.

Section 8.20         Name Change.  In connection with the Domestication, the Buyer shall change its name to “E2open Parent Holdings, Inc.”

Section 8.21        Buyer Warrants.  By virtue of the Domestication and without any action on the part of any holder of Buyer Warrants, each Buyer Warrant that is outstanding immediately prior to the consummation of the Domestication shall, pursuant to and in accordance with ‎Section 4.3(a) of the Warrant Agreement, automatically and irrevocably be modified to provide that such Buyer Warrant shall entitle the holder thereof to acquire shares of Buyer Class A Common Stock rather than Buyer Class A Ordinary Shares (after giving effect to the Domestication).

Section 8.22        Buyer Written Consent. Within one (1) day of the Effective Date, the Buyer, as the sole member of Blocker Merger Sub 1, Blocker Merger Sub 2, Blocker Merger Sub 3, Blocker Merger Sub 4, Blocker Merger Sub 5, Blocker Merger Sub 6 and Company Merger Sub shall deliver to the Company a written consent for each of the foregoing, evidencing the approval of this Agreement and the applicable Mergers.

Section 8.23         Exclusivity.

(a)           From the Effective Date until the earlier of the Closing or the termination of this Agreement in accordance with ‎Section 12.1, the Blockers and their respective controlled Affiliates and the Company and its Affiliates shall not, and shall cause their Subsidiaries and their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or would reasonably be expected to lead to, a Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (c) furnish (including through any virtual data room) any information relating to the Blockers or any Group Company or any of their assets or businesses, or afford access to the assets, business, properties, books or records of the Blockers or any Group Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Competing Transaction; (d) approve, endorse or recommend any Competing Transaction; or (e) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so.

(b)           From the Effective Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 12.1, the Buyer, the Sponsor and their respective Affiliates shall not, and shall cause their respective representatives not to, directly or indirectly, (a) solicit, initiate or take any action to knowingly facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from the Buyer, the Sponsor, any Person or group of Persons other than the Company and the Company Equityholders that may constitute, or would reasonably be expected to lead to, a Buyer Competing Transaction; (b) enter into, participate in, continue or otherwise engage in, any discussions or negotiations regarding a Buyer Competing Transaction; (c) commence due diligence with respect to any Person, in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (d) approve, endorse or recommend any Buyer Competing Transaction; or (e) enter into a Buyer Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Buyer Competing Transaction or publicly announce an intention to do so.

Section 8.24        Registration.  In the event that the shares of Buyer Class A Common Stock and Buyer Class B Common Stock are not registered in connection with the consummation of the transactions contemplated by this Agreement pursuant to the Investor Rights Agreement, Buyer shall use reasonable best efforts to include all Buyer Class A Common Stock issued hereunder pursuant to Section 3.5 to be included in the Registration Statement (as defined in the Subscription Agreements) in accordance with Section 7 of the Subscription Agreements.

Section 8.25        Permitted Acquisitions.  The Company shall reasonably cooperate with, and keep the Buyer reasonably informed of, any Permitted Acquisition. In furtherance of the foregoing, the Company shall provide the Buyer with drafts of all material documentation related to, or to be entered into in connection with, any such Permitted Acquisition (including any amendment thereto), and provide Buyer with a reasonable opportunity to review and comment on all such documentation and consider in good faith all reasonable Buyer comments thereto. Notwithstanding the foregoing, all such documentation shall be consistent with the terms of the Buyer’s consent to such Permitted Acquisition (including as set forth on Schedule 1.5) and any deviations to such terms shall require the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed). No Group Company shall be permitted to enter into a Permitted Acquisition to the extent such Permitted Acquisition would reasonably be expected to materially delay or materially impair the transactions contemplated hereby, including under this Agreement. Without limiting the foregoing, no Group Company shall be permitted to enter into any Permitted Acquisition that would delay the preparation, filing or effectiveness of the Form S-4.

Section 8.26         Pre-Closing Reorganization.  Prior to the Closing, either of EALP or EILP, or both of them, may, at their option, contribute 100% of their interests in Elliott Eagle Blocker to one or more entities designated by EALP or EILP, as the case may be (the “Elliott Reorganization Transferees”), in their sole and absolute discretion (a “Pre-Closing Reorganization”); provided that, nothing in this Section 8.26 shall permit EALP or EILP to, in connection with a Pre-Closing Reorganization, cease to hold, directly or indirectly, the membership interests in Elliott Eagle Blocker that such parties hold as of the date hereof; and provided, further, that EALP and EILP shall, in connection with any Pre-Closing Reorganization, transfer the Elliott Blocker Notes to the applicable Elliott Reorganization Transferees. In connection with any Pre-Closing Reorganization, the applicable Elliott Reorganization Transferees shall be obligated to execute a joinder agreement whereby each such Elliott Reorganization Transferee agrees to be bound under this Agreement with all of the rights and obligations of a “Elliott Blocker Owner” hereunder and to execute and deliver all documentation required to be delivered by an Elliott Blocker Owner hereunder.

Section 8.27         Lock-Up Agreements. In furtherance of Section 8.24, the Company shall use reasonable best efforts to deliver at Closing Lock-Up Agreements, duly executed by each Company Optionholder and Company Unitholder that will not be party to the Investor Rights Agreement or a Lock-Up Agreement at Closing.

Section 8.28         Termination of Certain Transactions.  Subject to the conditions set forth on Schedule 4.21, the Company will take the action set forth on Schedule 4.21.

Article IX
ADDITIONAL AGREEMENTS

Section 9.1           Access to Books and Records.  From and after the Closing, the Buyer and its Affiliates shall make or cause to be made available to the Equityholder Representative (at the Equityholder Representative’s sole expense) all books, records, and documents relating to periods prior to the Closing Date of any Blocker or any Group Company (and the assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (a) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding (i) brought or threatened to be brought by the Equityholder Representative or the Company arising under this Agreement or (ii) brought or threatened to be brought by the Buyer or its Affiliates against the Equityholder Representative, any Blocker Owner or any Group Company arising under this Agreement), (b) preparing reports to Governmental Entities or (c) such other purposes (that do not involve an actual or potential Proceeding brought by the Equityholder Representative or their Affiliates against the Buyer or by the Buyer or its Affiliates against the Equityholder Representative relating to or arising out of this Agreement) for which access to such documents is reasonably necessary. The Buyer shall (at the Company’s sole expense) cause each Group Company to maintain and preserve all such books, records and other documents in the possession of the Group Companies as of the Closing Date for the greater of (i) six (6) years after the Closing Date and (ii) any applicable statutory or regulatory retention period, as the same may be extended. Notwithstanding anything herein to the contrary, the Buyer shall not be required to provide any access or information to the Equityholder Representative or any of its respective representatives, which the Buyer reasonably believes, upon the advice of counsel, constitutes information protected by attorney-client privilege or which would violate any obligation owed to a third party under Contract or Law. This Section 9.1 shall not apply to Taxes or Tax matters, which are the subject of ‎Section 10.1.

Article X
TAX MATTERS

Section 10.1         Certain Tax Matters.

(a)          Preparation of Tax Returns.

(i)            The Buyer shall prepare, or cause to be prepared, at the cost and expense of the Company all income Tax Returns with respect to Pass-Through Income Taxes of each Group Company for any taxable period ending on or before the Closing Date and any Straddle Period, in each case, that are due after the Closing Date (taking into account applicable extensions). Each such Tax Return shall be prepared in a manner consistent with the Group Companies’ past practice except to the extent not “more likely than not” to be upheld under applicable Law. Each such Tax Return shall be submitted to the Equityholder Representative for review no later than thirty (30) days prior to the due date for filing such Tax Return (taking into account applicable extensions). The Buyer shall incorporate, or cause to be incorporated, all reasonable comments received from the Equityholder Representative no later than ten (10) days prior to the due date for filing any such Tax Return (taking into account applicable extensions) and the Buyer will cause such Tax Returns to be timely filed and will provide a copy of such filed Tax Returns to the Equityholder Representative.

(ii)            Notwithstanding the foregoing, each Tax Return described in this ‎Section 10.1(a) for a taxable period that includes the Closing Date (i) for which the “interim closing method” under Section 706 of the Code (or any similar provision of state, local or non-U.S. Law) is available shall be prepared in accordance with such method and (ii) for which an election under Section 754 of the Code (or any similar provision of state, local or non-U.S. Law) may be made shall make such election. Notwithstanding anything herein to the contrary, the Company Equityholders or Blocker Owners, as applicable, at their sole cost and expense, shall be solely responsible for filing all of the Tax Returns required to be filed by the Company Equityholders or Blocker Owners, as applicable, and paying all of the Taxes due and owing by the Company Equityholders or Blocker Owners, as applicable (including to the extent attributable to income of any Group Company that flows up to the Company Equityholders).

(b)            For purposes of determining whether the following Taxes are attributable to a Pre-Closing Tax Period:

(i)            in the case of property Taxes and other similar periodic Taxes imposed for a Straddle Period, the amounts that are allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the portion of the taxable period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period;

(ii)            in the case of Taxes imposed on any Group Company (or the Buyer or any of its Affiliates as a result of its direct or indirect ownership of an Group Company) or Blocker as a result of income of any Flow-Thru Entity realized on or prior to the Closing Date (such income being computed assuming the Flow-Thru Entity had a year that ends as of the end of the day on the Closing Date and closed its books), such Taxes shall be treated as Taxes of an Group Company for a Pre-Closing Tax Period;

(iii)            in the case of all other Taxes for a Straddle Period (including Taxes based on or measured by income, receipts, payments, or payroll (to the extent not covered by clauses (i)-(ii) above)), the amount allocable to the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the end of the day on the Closing Date using a “closing of the books” methodology; provided that for purposes of this clause (iii), any item determined on an annual or periodic basis (including amortization and depreciation deductions and the effects of graduated rates) shall be allocated to the portion of the Straddle Period ending on the Closing Date based on the mechanics set forth in clause (i) for periodic Taxes;

(iv)            in the case of Taxes in the form of interest, penalties or additions, all such Taxes shall be treated as attributable to a Pre-Closing Tax Period to the extent relating to a Tax for a Pre-Closing Tax Period (determined in accordance with clauses (i)-(iii) above) whether such items are incurred, accrued, assessed or similarly charged on, before or after the Closing Date; and

(v)            all Transaction Tax Deductions will, in each case, be allocated and attributable to a Pre-Closing Tax Period, to the extent permitted by applicable Law at a “more likely than not” or higher level of comfort.

(c)            Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns pursuant to ‎Section 10.1(a) and any examination or other Proceeding with respect to Taxes or Tax Returns of any Group Company or Blocker. Such cooperation shall include the provision of records and information that are reasonably relevant to any such audit or other Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Following the Closing, the Company, the Blockers, the Company Equityholders and the Blocker Owners shall (and the Company Equityholders and Blocker Owners shall cause their respective Affiliates to) retain all books and records with respect to Tax matters pertinent to the Group Companies or Blockers relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by the Equityholders’ Representative, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Taxing Authority. Each Party shall furnish the other Parties with copies of all relevant correspondence received from any Taxing Authority in connection with any Tax audit or information request with respect to any Taxes for which the other may have an indemnification obligation under this Agreement. The Company Equityholders and Blocker Owners shall (and shall cause their respective Affiliates to) provide any information reasonably requested to allow the Buyer or any Group Company or Blocker to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement. For the avoidance of doubt, this ‎Section 10.1(c) shall not apply to any dispute or threatened dispute among the Parties.

(d)            The Buyer shall cause the Company and Blockers, as applicable, to prepare and file, or cause to be prepared and filed, all necessary Tax Returns and other documentation with respect to all Transfer Taxes, and, if required by applicable Law, the Company Equityholders, the Blocker Owners, the Company, the Blockers and the Buyer will, and will cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax.

(e)            The Parties acknowledge and agree that for U.S. federal and, as applicable, state and local Tax purposes, they intend that (i) the transactions contemplated by this Agreement (A) be treated as a sale as of the Closing Date of Company Units by the Company Equityholders to the Buyer and a purchase of such Company Units by the Buyer from the Company Equityholders (the “Sale”), in exchange for the sum in cash, and allocated as between the Company Equityholders, as set forth in the Allocation Schedule in a transaction described in Section 741 of the Code (and any similar applicable state or local provisions of Tax Law) and (B) give rise to an adjustment to the Buyer’s basis in the direct and indirect assets of the Company pursuant to Section 743 of the Code (and, in each case, any equivalent adjustments for applicable state and local income Tax purposes), (ii) the Sale be governed by the first sentence of each of Treasury Regulations Section 1.197-2(h)(12)(i) and Section 1.197-2(h)(12)(v)(A), (iii) the contribution by the Buyer of the Buyer Contribution Amount contemplated by ‎Section 3.2(e) be treated as a contribution of an amount of cash equal to the Buyer Contribution Amount by the Buyer to the Company governed by Section 721 of the Code (and any similar applicable state or local provisions of Tax Law), (iv) the Domestication qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, (v) each Blocker Merger and the corresponding Buyer Merger, taken together, constitute an integrated plan described in Rev. Rul. 2001-46, 2001-2 C.B. 321, that qualifies as a “reorganization” within the meaning of Section 368(a) of the Code, (vi) this Agreement be, and hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Section 368 of the Code with respect to each of the Domestication and each of the reorganizations described in clause (v) (collectively, the “Intended Tax Treatment”), and (vii) none of the Buyer Parties, the Group Companies, the Buyer, the Blockers, the Company Equityholders or the Blocker Owners shall take any action, or fail to take any action, that would reasonably be expected to cause each Blocker Merger and the corresponding Buyer Merger, taken together, to fail to qualify for the Intended Tax Treatment.

(f)            Within one hundred twenty (120) days following the Closing Date, (i) the Buyer will prepare, and deliver to the Equityholder Representative, an allocation statement allocating the Adjusted Aggregate Cash Amount and any other amounts treated as consideration for U.S. federal income Tax purposes (the “Aggregate Consideration”) (A) among the equity interests of each Blocker and the Company Units acquired by Buyer pursuant to this Agreement and (B) with respect to the amount allocated to the Company Units pursuant to clause (A), among the assets of the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes, in each case, in accordance with Section 1060 of the Code (and any other applicable section of the Code), the Treasury Regulations thereunder (and any similar provision of state or local Law) and the methodologies set forth on Schedule 10.1(f) (the “Allocation”) and (ii) the Equityholder Representative will prepare, and deliver to the Buyer, a balance sheet, as of the Closing Date, that sets out the Tax basis of the assets then owned by the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes on the Closing Date and the amount of the liabilities of the Company and such Company Subsidiaries on the Closing Date (the “Tax Basis Balance Sheet”). The Allocation shall contain sufficient detail to permit the Parties to make the computations and adjustments required under Sections 743(b), 751 and 755 of the Code and the Treasury Regulations thereunder. Within twenty (20) days after the receipt of the Tax Basis Balance Sheet and Allocation, the receiving Party will propose any changes or will indicate its concurrence therewith. If the Buyer and the Equityholder Representative do not agree with the Tax Basis Balance Sheet or Allocation, then the Buyer and the Equityholder Representative shall attempt in good faith to reach agreement on the Tax Basis Balance Sheet or the Allocation, as applicable, in a manner consistent with applicable income Tax Law. If the Buyer and the Equityholder Representative cannot reach agreement on the Tax Basis Balance Sheet or the Allocation within fifteen (15) days after receipt of the other Party’s proposed changes, then the Buyer and the Equityholder Representative shall submit the dispute to the Valuation Firm or, if unavailable, another nationally recognized accounting firm mutually acceptable to the Buyer and the Equityholder Representative (the “Tax Accounting Firm”) for resolution, acting as an accounting expert (and not as an arbitrator). For this purpose, (i) the Tax Accounting Firm may not assign a value to any disputed item greater than the greatest value for such disputed item claimed by any party or less than the lowest value for such disputed item claimed by any party and (ii) all fees and expenses relating to the work, if any, to be performed by the Tax Accounting Firm will be allocated between the Buyer, on the one hand, and the Company Equityholders, on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Tax Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Tax Accounting Firm) bears to the total amount of such disputed items so submitted. The Tax Basis Balance Sheet and the Allocation, as agreed to by the Buyer and the Equityholder Representative or as finally determined by the Tax Accounting Firm, as the case may be, shall be binding on all Parties (the “Final Tax Basis Balance Sheet” and the “Final Allocation,” respectively).

(g)            The Parties shall, and shall cause each of their respective applicable Affiliates to: (1) prepare and file all Tax Returns consistent with the Final Tax Basis Balance Sheet, Final Allocation and Intended Tax Treatment (collectively, the “Tax Positions”); (2) take no position in any communication (whether written or unwritten) with any Governmental Entity or any other action inconsistent with the Tax Positions; (3) promptly inform each other of any challenge by any Governmental Entity to any portion of the Tax Positions; and (4) consult with and keep one another informed with respect to the status of, and any discussion, proposal or submission with respect to, any such challenge to any portion of the Tax Positions.

(h)            Without the prior written consent of the Buyer, the Company Equityholders and the Company shall not, and shall cause their respective Affiliates not to, make or cause to be made any election under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Group Company. With respect to any audit, examination or other Proceeding of any Group Company for any Pre-Closing Tax Period and for which the election provided for in Section 6226 of the Code (or any similar provision of state, local, or non-U.S. Laws) is available, the Company Equityholders and the Company shall, or shall cause their respective applicable Affiliates to, timely make, and to the extent required, fully cooperate with the Buyer and the Company to make, all such available elections in accordance with applicable Laws. The Company Equityholders and the Company shall, and shall cause their respective applicable Affiliates to, comply with all applicable Laws with respect to the making and implementation of any such election.

(i)            In the event of any proposed audit, adjustment, assessment, examination, claim or other controversy or proceeding relating to Pass-Through Income Taxes for any Pre-Closing Tax Period (a “Tax Contest”), the Buyer will, or will cause the applicable Group Company to, within 15 days of becoming aware of such Tax Contest, notify the Equityholder Representative of such Tax Contest; provided, that no failure or delay of Buyer in providing such notice shall reduce or otherwise affect the obligations of the Company Equityholders pursuant to this Agreement, except to the extent that the Company Equityholders are materially and adversely prejudiced as a result of such failure or delay. Buyer or the applicable Group Company shall endeavor in good faith to include, to the extent reasonably practicable, in such notice any written notice or other documents received from any Governmental Entity with respect to such Tax Contest. The Buyer will control the contest or resolution of any such Tax Contest; provided, the Buyer will obtain the prior consent of the Equityholder Representative (which consent will not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim to the extent doing so would reasonably be expected to have a disproportionate adverse impact on the Company Equityholders as compared with the Buyer and its Affiliates (including the Company and its Subsidiaries after the Closing Date); provided, further, the Equityholder Representative will be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose, in each case the fees and expenses of which will be borne solely by the Company Equityholders.

(j)            After the Closing, the Buyer and its Affiliates (including the Group Companies) will not, without the consent of the Equityholder Representative (which consent will not be unreasonably withheld, conditioned or delayed), (a) amend or otherwise modify any income Tax Return with respect to Pass-Through Income Taxes for Pre-Closing Tax Periods, (b) extend or waive, or cause to be extended or waived, any statute of limitations or other period for the assessment of any Pass-Through Income Taxes for Pre-Closing Tax Periods, or (c) make or change any income election or accounting method or practice with respect to Pass-Through Income Taxes for Pre-Closing Tax Periods; provided that, in each case the Equityholder Representative’s withholding, conditioning or delaying of consent over any such action shall be deemed to be unreasonable to the extent that such action is required under applicable Law.

Article XI
CONDITIONS TO OBLIGATIONS OF PARTIES

Section 11.1          Conditions to the Obligations of Each Party.  The obligation of each Party to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or written waiver, as of the Closing Date, of each of the following conditions:

(a)            Hart-Scott-Rodino Act. The waiting period (and any extension thereof) applicable to the consummation of the transactions contemplated hereby under the HSR Act shall have expired or been terminated.

(b)            No Orders or Illegality. There shall not be any applicable Law in effect that makes the consummation of the transactions contemplated hereby illegal or any Order in effect preventing the consummation of the transactions contemplated hereby.

(c)            Required Vote. The Required Vote shall have been obtained.

(d)            Form S-4. The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC that remains in effect with respect to the Form S-4, and no Proceeding seeking such a stop order shall have been threatened or initiated by the SEC that remains pending.

(e)            Buyer Governing Documents. The Buyer Certificate of Incorporation shall have been filed with the Secretary of State of the State of Delaware and the Buyer shall have adopted the Buyer Bylaws.

Section 11.2          Conditions to the Obligations of the Buyer and the Merger Subs.   The obligations of the Buyer and each Merger Sub to consummate the transactions to be performed by the Buyer in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(a)            Representations and Warranties.

(i)            The representations and warranties of the Group Companies set forth in ‎Article IV hereof (other than the Company Fundamental Representations) and of the Blockers set forth in ‎Article V hereof (other than the Blocker Fundamental Representations), in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein (other than in respect of the defined term “Material Contract”), shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, when taken as a whole, would not have a Material Adverse Effect; and

(ii)            the Company Fundamental Representations and the Blocker Fundamental Representations, in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, immaterial inaccuracies.

(b)            Performance and Obligations of the Company, Equityholder Representative and the Blockers. The respective covenants and agreements of the Company, the Equityholder Representative and the Blockers to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

(c)            Material Adverse Effect. Since the Effective Date, there has been no Material Adverse Effect.

(d)            Officers Certificate. The Company and each Blocker shall deliver to the Buyer a duly executed certificate from an authorized Person of (x) the Company (the “Company Bring-Down Certificate”) and (y) each Blocker (a “Blocker Bring-Down Certificate”), in each case, dated as of the Closing Date, certifying, (i) with respect to the Company, that the conditions set forth in ‎Section 11.2(a), ‎(b) and ‎(c) have been satisfied with respect to the Company and (ii) with respect to each Blocker, that the conditions set forth in ‎Section 11.2(a) and ‎(b) have been satisfied with respect to such Blocker.

(e)            Ancillary Agreements. The Company shall have delivered to the Buyer a counterpart signature page to the Company A&R LLCA duly executed by the Company, and counterpart signature pages to the Investor Rights Agreement duly executed by the Insight Member, the Insight Blocker Owners, and the Elliott Blocker Owners.

(f)            Minimum Cash Amount. The Available Closing Date Equity shall be equal to or greater than the Minimum Cash Amount less one hundred million dollars ($100,000,000).

Section 11.3         Conditions to the Obligations of the Blockers and the Company.   The obligation of the Blockers and the Company to consummate the transactions to be performed by the Blockers and the Company, as applicable, in connection with the Closing is subject to the satisfaction or written waiver by the Company, at or prior to the Closing Date, of each of the following conditions:

(a)            Representations and Warranties.

(i)            The representations and warranties of the Buyer set forth in ‎Article VI (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except, in each case, to the extent such failure of the representations and warranties to be so true and correct when taken as a whole, would have a material adverse effect on the Buyer.

(ii)            The Buyer Fundamental Representations in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct in all respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date) other than, in each case, immaterial inaccuracies.

(b)            Performance and Obligations of the Buyer. The covenants and agreements of the Buyer Parties to be performed or complied with on or before the Closing in accordance with this Agreement shall have been performed in all material respects.

(c)            Minimum Cash Amount. The Available Closing Date Equity shall be equal to or greater than the Minimum Cash Amount.

(d)            Officers Certificate. The Buyer shall deliver to the Company, a duly executed certificate from a director or an officer of the Buyer (the “Buyer Bring-Down Certificate”) dated as of the Closing Date, certifying that the conditions set forth in ‎Section 11.3(a), ‎Section 11.3(b) and Section 11.3(c) have been satisfied.

(e)            Buyer Share Redemption. The Buyer Share Redemptions shall have been completed in accordance with the terms hereof, the applicable Buyer Governing Documents, the Trust Agreement and the Form S-4.

(f)            Trust Account. The Buyer shall have used reasonable best efforts to have made all necessary and appropriate arrangements with the Trustee to have all of the remaining funds from the Trust Account available to the Surviving Company.

(g)            Listing. The Buyer Class A Common Stock shall be listed on the Stock Exchange.

(h)            Ancillary Agreements. The Buyer shall have delivered to the Equityholder Representative counterpart signature pages to the Company A&R LLCA and the Tax Receivable Agreement duly executed by the Buyer, and counterpart signature pages to the Investor Rights Agreement duly executed by the Buyer, the Sponsor, and the Founder Holders (as defined in the Investor Rights Agreement).

Section 11.4          Frustration of Closing Conditions.  None of the Blockers, the Company or the Buyer may rely on the failure of any condition set forth in this Article XI to be satisfied if such failure was caused by such Party’s failure to act in good faith or to use reasonable best efforts to cause the closing conditions of each such other Party to be satisfied.

Section 11.5          Waiver of Closing Conditions.  Upon the occurrence of the Closing, any condition set forth in this Article XI that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

Article XII
TERMINATION

Section 12.1          Termination.  This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing only as follows:

(a)            by the mutual written consent of the Company and the Buyer;

(b)            by either the Company or the Buyer by written notice to the other Party if any Governmental Entity has enacted any Law which has become final and non-appealable and has the effect of making the consummation of the transactions contemplated hereby illegal or any final, non-appealable Order is in effect permanently preventing the consummation of the transactions contemplated hereby; provided, however, that the right to terminate this Agreement pursuant to this ‎Section 12.1(b) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement hereof results in or causes such final, non-appealable Order or other action;

(c)            by either the Company or the Buyer by written notice to the other if the consummation of the transactions contemplated hereby shall not have occurred on or before April 14, 2021 (the “Outside Date”); provided that the right to terminate this Agreement under this ‎Section 12.1(c) shall not be available to any Party then in material breach of its representations, warranties, covenants or agreements under this Agreement;

(d)            by the Company, if the Buyer or any Merger Sub breaches in any material respect any of its representations or warranties contained herein or breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Company’s and Blocker’s obligations to consummate the transactions set forth in ‎Section 11.1 or ‎Section 11.3 hereof not capable of being satisfied and (ii) after the giving of written notice of such breach or failure to perform to the Buyer by the Company, cannot be cured or has not been cured by the earlier of (x) the Outside Date and (y) thirty (30) Business Days after receipt of such written notice and the Company has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this ‎Section 12.1(d) shall not be available to the Company if the Company, any Blocker or the Equityholder Representative is then in material breach of any representation, warranty, covenant or agreement contained herein;

(e)            by the Buyer, if the Company or any Blocker breaches in any material respect any of their representations or warranties contained herein or the Company, any Blocker or the Equityholder Representative breaches or fails to perform in any material respect any of its covenants contained herein, which breach or failure to perform (i) would render a condition precedent to the Buyer’s and Merger Subs’ obligations to consummate the transactions set forth in Section 11.1 or Section 11.2 hereof not capable of being satisfied, and (ii) after the giving of written notice of such breach or failure to perform to the Equityholder Representative by the Buyer, cannot be cured or has not been cured by the earlier of (x) the Outside Date and (y) thirty (30) Business Days after the delivery of such written notice (in which case the Outside Date shall automatically be extended until the end of such thirty (30) Business Day period) and the Buyer has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this ‎Section 12.1(e) shall not be available to the Buyer if the Buyer or any Merger Sub is then in material breach of any representation, warranty, covenant or agreement contained herein; or

(f)            by Buyer if the Company Written Consent or any Blocker Written Consent shall not have been obtained and delivered to Buyer within one (1) day of the Effective Date.

Section 12.2         Effect of Termination.  In the event of the termination of this Agreement pursuant to ‎Section 12.1, this Agreement shall immediately become null and void, without any Liability on the part of any Party or any other Person, and all rights and obligations of each Party shall cease; provided that (a) the Confidentiality Agreement and the agreements contained in ‎Section 8.10(a), Section 8.12, this ‎Section 12.2 and ‎Article XIII hereof survive any termination of this Agreement and remain in full force and effect and (b) no such termination shall relieve any Party from any Liability arising out of or incurred as a result of its Fraud or its willful and material breach of this Agreement.

Article XIII
MISCELLANEOUS

Section 13.1         Amendment and Waiver.  No amendment of any provision hereof shall be valid unless the same shall be in writing and signed by the Buyer, the Company, and the Equityholder Representative. No waiver of any provision or condition hereof shall be valid unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence. No amendment or waiver to this Section 13.1 or Section 8.13(c), Section 13.3, Section 13.7 or Section 13.12 or defined term used therein (or to any other provision or definition of this Agreement to the extent that such amendment or waiver would modify the substance of any such foregoing Section or defined term used therein) that is adverse in any respect to a Debt Financing Source shall be effective as to such Debt Financing Source without the written consent of such Debt Financing Source.

Section 13.2          Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), received by e-mail (having obtained electronic delivery confirmation thereof, not to be unreasonably withheld, conditioned or delayed) prior to 5:00 p.m. Eastern Time on a Business Day, and, if otherwise, on the next Business Day, (b) one (1) Business Day following sending by reputable overnight express courier (charges prepaid) or (c) three (3) days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this ‎Section 13.2, notices, demands and communications to the Company, the Buyer, and Equityholder Representative shall be sent to the addresses indicated below (or to such other address or addresses as the Parties may from time to time designate in writing):

Section 13.3        Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Party (including by operation of Law) without the prior written consent of the other Parties; provided that any Group Company may assign its rights under this Agreement to the Debt Financing Sources as collateral security. Any purported assignment or delegation not permitted under this ‎Section 13.3 shall be null and void.

Section 13.4        Severability.  Whenever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision hereof or the application of any such provision to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions hereof. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part hereof a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.

Section 13.5      Interpretation. The headings and captions used herein and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth herein. The use of the word “including” herein shall mean “including without limitation.” The words “hereof,” “herein,” and “hereunder” and words of similar import, when used herein, shall refer to this Agreement as a whole and not to any particular provision hereof. References herein to a specific Section, Subsection, Recital, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Recitals, Schedules or Exhibits hereof. Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa. References herein to any gender shall include each other gender. The word “or” shall not be exclusive unless the context clearly requires the selection of one (1) (but not more than one (1)) of a number of items. References to “written” or “in writing” include in electronic form. References herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and permitted assigns; provided, however, that nothing contained in this ‎Section 13.5 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement. References herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity. Any reference to “days” shall mean calendar days unless Business Days are specified; provided that if any action is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter. References herein to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided that with respect to any Contract listed (or required to be listed) on the Disclosure Schedules, all material amendments thereto (or with respect to customer or supplier Contracts, only those amendments that include a restrictive covenant or place any other material restriction on the ability of any Group Company to operate) (for the avoidance, excluding in either case any purchase orders, work orders or statements of work) must also be listed on the appropriate section of the applicable schedule and disclosed. With respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” References herein to any Law shall be deemed also to refer to such Law, as amended, and all rules and regulations promulgated thereunder. The word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” References to the Group Companies as a whole, any Group Company, or the operations, business or assets of any Group Company, solely for purposes of Article IV as of any date prior to the date a Permitted Acquisition was consummated, will be deemed not to include any Person or business acquired in connection with such Permitted Acquisition or the business, operations, assets or liabilities thereof. An accounting term not otherwise defined herein has the meaning assigned to it in accordance with GAAP. Except where otherwise provided, all amounts herein are stated and shall be paid in United States dollars. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and the language used herein shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided, made available or delivered to the Buyer if such information or materials have been uploaded to the electronic data room maintained by the Company and its financial advisor on the “Insight FY2020” online data site hosted by Venue at http://www.dfsvenue.com/ for purposes of the transactions contemplated hereby (the “Data Room”) or otherwise provided to the Buyer’s representatives (including counsel) via e-mail, in each case with respect to the representations and warranties contained in Article IV and Article V, at least one (1) Business Day prior to the Effective Date.

Section 13.6      Entire Agreement. This Agreement, the Ancillary Agreements and the Confidentiality Agreement (together with the Schedules and Exhibits to this Agreement) contain the entire agreement and understanding among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions, whether written or oral, relating to such subject matter in any way. The Parties have voluntarily agreed to define their rights and Liabilities with respect to the transactions contemplated hereby exclusively pursuant to the express terms and provisions hereof, and the Parties disclaim that they are owed any duties or are entitled to any remedies not set forth herein. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.

Section 13.7      Governing Law; Waiver of Jury Trial; Jurisdiction.   The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability hereof, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIPS ESTABLISHED AMONG THE PARTIES UNDER THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this ‎Section 13.7, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity. Notwithstanding anything to the contrary contained herein, (a) any right or obligation with respect to any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, and any claim, controversy, dispute, suit, action or proceeding relating thereto or arising thereunder, shall be governed by and construed in accordance with the law of the State of New York, (b) each party hereto hereby submits itself to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan in the City of New York and the United States District Court for the Southern District of New York and any appellate courts thereof with respect to any suit, action or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, and hereby agrees that it will not bring or support any such suit, action or proceeding in any other forum, and (c) each party hereto hereby waives any right it may have to a trial by jury in respect to any suit, action or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise.

Section 13.8      Non-Survival.  None of the representations, warranties, covenants or agreements set forth herein or in any certificate delivered pursuant to this Agreement including any rights arising out of any breach of such representations, warranties, covenants or agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for (i) those covenants and agreements that by their terms contemplate performance, in each case, in whole or in part after the Closing, and then only with respect to the period following the Closing (including any breaches occurring after the Closing), which shall survive until thirty (30) days following the date of the expiration, by its terms of the obligation of the applicable Party under such covenant or agreement. Notwithstanding anything to the contrary contained herein, none of the provisions set forth herein shall be deemed a waiver by any Party of any right or remedy which such Party may have at Law or in equity in the case of Fraud.

Section 13.9      Trust Account Waiver.  Each of the Company, each Blocker and the Equityholder Representative acknowledge that the Buyer has established the Trust Account for the benefit of its public Buyer Shareholders, which holds proceeds of its initial public offering. For and in consideration of the Buyer entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Company, each Blocker and the Equityholder Representative, for itself and the Affiliates and Persons it has the authority to bind, hereby agrees it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets in the Trust Account (or distributions therefrom to (i) the public Buyer Shareholders upon the redemption of their shares and (ii) the underwriters of Buyer’s initial public offering in respect of their deferred underwriting commissions held in the Trust Account, in each case as set forth in the Trust Agreement (collectively, the “Trust Distributions”)), and hereby waives any claims it has or may have at any time solely against the Trust Account (including the Trust Distributions) as a result of, or arising out of, any discussions, Contracts or agreements (including this Agreement) among the Buyer and the Company or the Company’s Equityholders and will not seek recourse against the Trust Account (including the Trust Distributions) for any reason whatsoever; provided that nothing in this Section 13.9 shall limit any right to specifically enforce this Agreement pursuant to Section 13.11. The Company, each Blocker and the Equityholder Representative agree and acknowledge that such irrevocable waiver is material to this Agreement and specifically relied upon by the Buyer and the Sponsor to induce the Buyer to enter into this Agreement, and the Company, each Blocker and the Equityholder Representative further intend and understand such waiver to be valid, binding and enforceable against the Company, each Blocker and the Equityholder Representative and each of their respective Affiliates and Persons that they have the authority to bind under applicable Law. To the extent that the Company, any Blocker or the Equityholder Representative or any of their respective Affiliates or Persons that they have the authority to bind commences any Proceeding against the Buyer or any of its Affiliates based upon, in connection with, relating to or arising out of any matter relating to the Buyer or its representatives, which proceeding seeks, in whole or in part, monetary relief against the Buyer or its representatives, the Company, each Blocker and the Equityholder Representative hereby acknowledge and agree that their respective and their respective Affiliates’ sole remedy shall be against assets of the Buyer not in the Trust Account and that such claim shall not permit the Company, any Blocker or the Equityholder Representative or such Affiliates (or any Person claiming on any of their behalves) to have any claim against the Trust Account (including the Trust Distributions) or any amounts contained in the Trust Account while in the Trust Account. Notwithstanding the foregoing, nothing in this Section 13.9 shall serve to limit or prohibit (i) the Company’s, each Blocker’s, any Company Unitholder’s, any Company Optionholder’s or the Equityholder Representative’s right to pursue a claim against the Buyer for legal relief against assets held outside the Trust Account or pursuant to Section 13.11 for specific performance or other non-monetary relief, or (ii) any claims that the Company, any Blocker, any Company Unitholder, any Company Optionholder or the Equityholder Representative may have in the future against the Buyer’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account (other than the Trust Distributions) and any assets that have been purchased or acquired with any such funds) other than as contemplated by this Agreement,.

Section 13.10      Counterparts; Electronic Delivery. This Agreement, the Ancillary Agreements and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by e-mail, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of e-mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine or e-mail as a defense to the formation or enforceability of a Contract and each Party forever waives any such defense.

Section 13.11      Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique and recognize and affirm that in the event any of the provisions hereof are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching Party would have no adequate remedy at Law) and the non-breaching Party would be irreparably damaged. Accordingly, each Party agrees that each other Party shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions hereof and to enforce specifically this Agreement or any Ancillary Agreement to the extent expressly contemplated herein or therein and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in accordance with this Section 13.11 shall not be required to provide any bond or other security in connection with any such injunction.

Section 13.12      No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights hereunder (other than (x) Non-Party Affiliates, each of whom is an express third-party beneficiary hereunder to the provisions of Section 13.14 and (y) the Indemnified Persons, each of whom is an express third-party beneficiary hereunder to the provisions of Section 8.15). Notwithstanding the foregoing and anything to the contrary contained herein, each Debt Financing Source is intended to be, and shall be, an express third-party beneficiary of this Section 13.12 and Sections 8.13(c), 13.1, 13.3, and 13.7.

Section 13.13      Schedules and Exhibits. All Schedules and Exhibits attached hereto or referred to herein are (a) each hereby incorporated in and made a part of this Agreement as if set forth in full herein and (b) qualified in their entirety by reference to specific provisions of this Agreement. Any fact or item disclosed in any Section of the Schedules shall be deemed disclosed in each other Section of the applicable Schedule to which such fact or item may apply so long as (x) such other Section is referenced by applicable cross-reference or (y) it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such other Section or portion of the Schedule. The headings contained in the Schedules are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Schedules. The Schedules shall not be deemed to expand in any way the scope or effect of any representations, warranties or covenants described herein. Any fact or item, including the specification of any dollar amount, disclosed in the Schedules shall not by reason only of such inclusion (x) be deemed to be material, to establish any standard of materiality or to define further the meaning of such terms for purposes hereof, (y) represent a determination that such item or matter did not arise in the Ordinary Course of Business or (z) be deemed or interpreted to expand the scope of the Company’s representations and warranties, obligations, covenants, conditions or agreements contained herein or in the Agreements, and matters reflected in the Schedules are not necessarily limited to matters required by this Agreement to be reflected herein and may be included solely for information purposes. The inclusion of any item or information in the Schedules shall not be deemed an admission of any fact, circumstance, liability or obligation to any third party. Moreover, in disclosing the information in the Schedules, the Company and the Blockers expressly do not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein. The information contained in the Schedules shall be kept strictly confidential by the Parties and no third party may rely on any information disclosed or set forth therein.

Section 13.14      No Recourse. Notwithstanding anything that may be expressed or implied herein (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise contemplated hereby if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance hereof, may only be brought against the entities that are named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this ‎Section 13.14. Notwithstanding any provision hereof to the contrary, in no event shall the Group Companies, the Blockers or the Equityholder Representative or any of their respective Affiliates or representatives seek to recover monetary damages from any Equity Financing Source in connection with the obligations of the Equity Financing Sources for the Equity Financing under the applicable Subscription Agreement, Permitted Equity Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement (other than pursuant to the Subscription Agreements in accordance with their terms to the extent expressly set forth therein). Nothing in this ‎Section 13.14 shall in any way limit or qualify the rights and obligations of the Equity Financing Sources for the applicable Equity Financing and the other parties to the Subscription Agreements, any Permitted Equity Subscription Agreement, the Backstop Agreement or the Forward Purchase Agreement (as amended by the NBOKS Side Letter), as applicable, to each other thereunder or in connection therewith (including the Company’s rights as a third party beneficiary to the Subscription Agreements, the Backstop Agreement and the Forward Purchase Agreement in accordance with their terms to the extent expressly set forth therein).

Section 13.15      Equitable Adjustments.  If, during the Pre-Closing Period, the outstanding shares of Buyer Capital Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination, consolidation or exchange of shares, or any similar event shall have occurred (including any of the foregoing in connection with the Domestication), then any number or amount contained herein which is based upon the number of shares of Buyer Capital Stock will be appropriately adjusted to provide to the Blocker Owners and the Company Equityholders and the Buyer Shareholders the same economic effect as contemplated hereby prior to such event.

Section 13.16        Waiver of Conflicts; Attorney-Client Communications.

(a)            Recognizing that Willkie Farr & Gallagher LLP (“Willkie”) has acted as legal counsel to the Group Companies, certain of the Company Equityholders, the Blocker Owners and their respective Affiliates prior to the Closing, and that the certain of the Company Equityholders, the Blocker Owners and their respective Affiliates intend to continue to engage Willkie to act as legal counsel to such Company Equityholders, Blocker Owners and their respective Affiliates after the Closing, the Buyer, on behalf of itself and each of its Subsidiaries (including, following the Closing, the Group Companies), consents to, waives, and will not assert, and agrees, after the Closing, to cause the Group Companies to consent to, waive, and to not assert any present, past or future actual or potential conflict of interest that may arise in connection with Willkie representing any or all of the Company Equityholders, the Blocker Owners or their respective Affiliates prior to or after the Closing with respect to prior representation, and the communication by Willkie to such Persons, in any such representation, of any fact known to Willkie, including Attorney-Client Communications, including in connection with any negotiation, arbitration, mediation, litigation or other Proceeding in any way related to a dispute with either of the Buyer or the Group Companies or other Person following the Closing, and the disclosure of any such fact in connection with any process undertaken for the resolution of such dispute.

(b)            The Buyer, on behalf of itself and each of its Subsidiaries (including, following the Closing, the Group Companies), irrevocably acknowledges and agrees as follows: (i) all communications of any nature prior to the Closing (and all records of such communications) between any or all of the Company Equityholders, the Blocker Owners, the Blockers, the Group Companies, any officer, director, employee, or agent of any Group Company, and their respective Affiliates, any of the financial advisors, attorneys, accountants and other advisors to the foregoing, and Willkie and its partners and employees, and all of Willkie’s work product with respect to, relating to, or in connection with the negotiation, preparation, execution, delivery and closing under, or any dispute or Proceeding arising under or in connection with, this Agreement or any other Ancillary Agreement or any acquisition proposal, and all matters related to any of the foregoing, in each case, to the extent constituting attorney-client privileged communication, work product, materials or matters (individually and collectively “Attorney-Client Communications”) shall at all times be subject to the attorney-client privilege or attorney work-product doctrine, as applicable, solely in favor of and held by Company Equityholders and Blocker Owners, and shall be deemed to be confidential and proprietary information solely of the Company Equityholders and Blocker Owners; (ii) such privilege or doctrine shall be held solely by, and may be waived only by, the Company Equityholders and Blocker Owners and their respective personal representatives, successors and assigns, and not by the Buyer or any of its Subsidiaries (including the Group Companies), or their Affiliates, successor or assigns; (iii) all Attorney-Client Communications, and all records, and copies or extracts of records, of or maintained by the Acquired Companies of Attorney-Client Communications in any form, including hard copy or in digital or electronic media, and all rights, privileges and interests therein shall be (and hereby are) irrevocably and completely assigned, transferred and delivered by the Group Companies to the Company Equityholders and Blocker Owners immediately prior to Closing, and the Buyer, the Group Companies and the Subsidiaries of the Buyer and their Affiliates, successors and assigns shall have no right or interest therein of any nature whatsoever including any access to or possession of such records or copies and any right to waive the attorney-client privilege or attorney work-product doctrine with respect to any Attorney-Client Communications and (iv) Willkie shall have no duty whatsoever to reveal or disclose any such Attorney-Client Communications or files to the Group Companies by reason of any attorney-client relationship between Willkie and the Group Companies.

Article XIV
AUTHORIZATION OF THE EQUITYHOLDER REPRESENTATIVE

Section 14.1           Authorization of Equityholder Representative.

(a)            Appointment. By adoption of this Agreement, execution of a Blocker Letter of Transmittal, a Company Unitholder Letter of Transmittal or a Company Optionholder Letter of Transmittal, and the acceptance of any portion of the Merger Consideration, each Blocker Owner, Company Unitholder and Company Optionholder hereby irrevocably constitutes and appoints the Equityholder Representative as his, her or its, agent and representative to, in addition to the other rights and authority granted to the Equityholder Representative elsewhere in this Agreement, to execute any and all instruments or other documents on behalf of such Blocker Owner, Company Unitholder and Company Optionholder, and to do any and all other acts or things on behalf of such Blocker Owner, Company Unitholder and Company Optionholder, which the Equityholder Representative may deem necessary, advisable, convenient or appropriate, or which may be required pursuant to this Agreement, the Ancillary Agreements or otherwise, in connection with the facilitation of the consummation of the transactions contemplated hereby or thereby and the performance of all obligations hereunder or thereunder at or following the Closing, including the exercise of the power to: (i) execute the Ancillary Agreements, instruments or certificates on behalf of each Blocker Owner, Company Unitholder and Company Optionholder; (ii) act for each Blocker Owner, Company Unitholder and Company Optionholder with respect to any adjustment to the Estimated Merger Consideration and the Ancillary Agreements; (iii) give and receive notices and communications to or from the Buyer Parties relating to this Agreement, the Ancillary Agreements or any of the transactions and other matters contemplated hereby or thereby (except to the extent that this Agreement or any Ancillary Agreement expressly contemplates that any such notice or communication shall be given or received by such Blocker Owner, Company Unitholder or Company Optionholder individually); (iv) administration of the provisions of this Agreement; (v) give or agree to, on behalf of all or any of the Blocker Owner, Company Unitholders and Company Optionholders, any and all consents, waivers, amendments or modifications deemed by the Equityholder Representative, in its sole and absolute discretion, to be necessary or appropriate under this Agreement and the execution or delivery of any documents that may be necessary or appropriate in connection therewith; (vi) amending this Agreement, any Ancillary Agreement or any of the instruments to be delivered to the Buyer hereunder or thereunder; (vii) (A) dispute or refrain from disputing, on behalf of each Blocker Owner, Company Unitholder and Company Optionholder, any amounts to be received by such Blocker Owner, Company Unitholder and Company Optionholder under this Agreement or any claim made by the Buyer Parties under this Agreement, (B) negotiate and compromise, on behalf of each such Blocker Owner, Company Unitholder and Company Optionholder, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, this Agreement, and (C) execute, on behalf of each such Blocker Owner, Company Unitholder and Company Optionholder, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) engage attorneys, accountants, agents or consultants on behalf of the Blocker Owners, Company Unitholders and Company Optionholders in connection with this Agreement or any Ancillary Agreement and pay any fees related thereto, and (ix) take all actions necessary or appropriate in the judgment of the Equityholder Representative for the accomplishment of the foregoing. For the avoidance of doubt, the Equityholder Representative shall have authority and power to act on behalf of each Blocker Owner, Company Unitholder and Company Optionholder with respect to the disposition, settlement or other handling of all claims under this Agreement or the Ancillary Agreements and all rights or obligations arising under this Agreement or thereunder. The Blocker Owners, the Company Unitholders and the Company Optionholders shall be bound by all actions taken and documents executed by the Equityholder Representative in connection with this Agreement and the Ancillary Agreements, and the Buyer Parties shall be entitled to rely on any action or decision of the Equityholder Representative. Notices or communications to or from the Equityholder Representative shall constitute notice to or from each Blocker Owner, any Company Unitholder or any Company Optionholder.

(b)            Authorization. Notwithstanding Section 14.1(a), in the event that the Equityholder Representative is of the opinion that it requires further authorization or advice from the Blocker Owners, Company Unitholders and Company Optionholders on any matters concerning this Agreement, the Equityholder Representative shall be entitled to seek such further authorization from the Equityholders prior to acting on their behalf. In such event, each Blocker Owner, Company Unitholder and Company Optionholder shall vote in accordance with the pro rata portion of the Merger Consideration paid to such Blocker Owner, Company Unitholder and Company Optionholder in accordance with this Agreement and the authorization of a majority of such Persons shall be binding on all of the Blocker Owners, Company Unitholders and Company Optionholders and shall constitute the authorization of the Blocker Owners, Company Unitholders and Company Optionholders. The appointment of the Equityholder Representative is coupled with an interest and shall be irrevocable by any Blocker Owner, Company Unitholder and Company Optionholder in any manner or for any reason. This authority granted to the Equityholder Representative shall not be affected by the death, illness, dissolution, disability, incapacity or other inability to act of any principal pursuant to any applicable Law. Insight Venture Partners, LLC hereby accepts its appointment as the initial Equityholder Representative. Any decision, act, consent or instruction taken by the Equityholder Representative, on behalf of the Equityholders, pursuant to this Section 14.1(b) (each, an “Authorized Action”) shall be final, binding and conclusive on each Blocker Owner, Company Unitholder and Company Optionholder as fully as if such Person had taken such Authorized Action. The Buyer Parties agree that the Equityholder Representative, as the Equityholder Representative, shall have no liability to any Buyer Party for any Authorized Action.

(c)            Resignation; Vacancies. The Equityholder Representative may resign from its position as Equityholder Representative at any time by written notice delivered to the Buyer and the Equityholders. If there is a vacancy at any time in the position of the Equityholder Representative for any reason, such vacancy shall be filled by a majority vote in accordance with the method set forth in Section 14.1(b).

(d)            No Liability. All acts on behalf of the Equityholder Representative hereunder in its capacity as such shall be deemed to be acts of the Blocker Owners, Company Unitholders and Company Optionholders and not of the Equityholder Representative individually. Without limiting Section 13.11, the Equityholder Representative shall not be liable to the Buyer, any Blocker Owner, Company Unitholder or Company Optionholder or any other Person in its capacity as the Equityholder Representative for any reason, including for anything which it may do or refrain from doing in connection with this Agreement or any Ancillary Agreement; provided, subject to Section 14.1(e), the foregoing will not prevent liability to the Buyer for the Equityholder Representative’s willful breach of this Agreement. The Equityholder Representative shall not be liable to the Blocker Owners, Company Unitholders and Company Optionholders, in its capacity as the Equityholder Representative, for any liability of any Blocker Owner, Company Unitholder and Company Optionholder or otherwise, or for any error of judgment or for any mistake in fact or Law, except in the case of the Equityholder Representative’s gross negligence or willful misconduct as determined in a final and non-appealable judgment of a court of competent jurisdiction. The Equityholder Representative may seek the advice of legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or any Ancillary Agreement or its duties or rights hereunder or thereunder, and it shall be fully protected with respect to any action taken, omitted or suffered by it in accordance with the advice of such counsel. The Equityholder Representative shall not by reason of this Agreement have a fiduciary relationship in respect of any Equityholder, except in respect of amounts received on behalf of any Blocker Owner, Company Unitholder and Company Optionholder (if any). The Buyer Parties shall be entitled to rely conclusively on any decision, action (or inaction), consent or instruction of the Equityholder Representative as being the decision, action, consent or instruction of the Blocker Owners, Company Unitholders and Company Optionholders, and the Buyer and the Merger Subs shall be entitled to deal solely with the Equityholder Representative (and shall not be required to deal with any individual Blocker Owner, Company Unitholder or Company Optionholder, in its capacity as such) with respect to all matters in connection with this Agreement. The Buyer Parties are hereby relieved from any Liability to any Person for acts done by them in accordance with any such decision, act, consent or instruction of the Equityholder Representative.

(e)            Indemnification; Expenses. Each Blocker Owner, Company Unitholder and Company Optionholder shall severally (based on each such Blocker Owner’s, Company Unitholder’s or Company Optionholder’s Pro Rata Percentage), and not jointly, indemnify and hold harmless the Equityholder Representative from and against any loss incurred without gross negligence or willful misconduct (as determined in a final and non-appealable judgment of a court of competent jurisdiction) on the part of the Equityholder Representative and arising out of or in connection with the acceptance or administration of its duties hereunder. The Equityholder Representative may use the Equityholder Representative Expense Amount to pay any fees, costs, expenses or other obligations incurred by the Equityholder Representative acting in its capacity as such. Any expenses or taxable income incurred by the Equityholder Representative in connection with the performance of its duties under this Agreement or any Ancillary Agreement shall not be the personal obligation of the Equityholder Representative but shall be payable by and attributable to the Blocker Owners, Company Unitholders and Company Optionholders based on each such Blocker Owner’s Company Unitholder’s and Company Optionholder’s Pro Rata Percentage. From and after the Closing, if the Equityholder Representative determines that the amounts in the Equityholder Representative Expense Account are insufficient to satisfy current or future (whether realized or potential) costs and expenses of the Equityholder Representative, it shall be entitled to withhold on a pro rata basis from amounts otherwise due to the Blocker Owners, the Company Unitholders and the Company Optionholders under this Agreement or under any Ancillary Agreement amounts as it deems necessary to provide for such administrative costs; provided that such amounts shall be deemed to be included in the Equityholder Representative Expense Account. The Equityholder Representative may also from time to time submit invoices to the Equityholders covering such expenses and liabilities, which shall be paid by the Blocker Owners, Company Unitholders and Company Optionholders promptly following the receipt thereof based on their respective Pro Rata Percentages. Upon the request of any Blocker Owner, Company Unitholder and Company Optionholder, the Equityholder Representative shall provide such Blocker Owner, Company Unitholder and Company Optionholder with an accounting of all material expenses and liabilities paid by the Equityholder Representative in its capacity as such.

* * * * *

Each of the undersigned has caused this Business Combination Agreement to be duly executed as of the date first above written.

Signature Page to Business Combination Agreement

EXHIBIT A

COMPANY A&R LLCA

(see attached)

Exhibit A to Business Combination Agreement

Final Form

FORM OF THIRD AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

E2OPEN HOLDINGS, LLC

DATED AS OF [●], 202[●]

THE LIMITED LIABILITY COMPANY INTERESTS IN E2OPEN HOLDINGS, LLC HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, THE SECURITIES LAWS OF ANY STATE, OR ANY OTHER APPLICABLE SECURITIES LAWS, AND HAVE BEEN OR ARE BEING ISSUED IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH INTERESTS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS OF ANY STATE AND ANY OTHER APPLICABLE SECURITIES LAWS; (II) THE TERMS AND CONDITIONS OF THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT; AND (III) ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BETWEEN THE MANAGING MEMBER AND THE APPLICABLE MEMBER. THEREFORE, PURCHASERS AND OTHER TRANSFEREES OF SUCH LIMITED LIABILITY COMPANY INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT OR ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.

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